A-188-81
The Queen in right of Canada as represented by
the Treast>iry Board (Applicant)
v.
Canadian Air Traffic Control Association
(Respondent)
Court of Appeal, Pratte, Urie B. and Kerr D.J.—
Ottawa, September 24 and October 21, 1981.
Judicial review — Public Service — Application to review
and set aside a decision of the Public Service Staff Relations
Board S. 79 of the Public Service Staff Relations Act
provides for the designation of public servants whose functions
are related to public safety and who are therefore denied the
right to strike — Board held that its duty was to determine the
number of employees of each class in the bargaining unit that
would be needed in order to provide the services necessary to
ensure the safety of the air services that, in the event of a
strike, must be maintained in the interest of the safety or
security of the public Board enumerated the duties that
were essential in the event of a strike Whether the Board
erred by assuming the authority to decide what duties desig
nated employees should perform in the interest of the safety
and security of the public and the authority to determine what
services should be provided in the event of a strike Applica
tion allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28 — Public Service Staff Relations Act, R.S.C. 1970, c.
P-35, ss. 2, 79, 101(1)(c).
Application to review and set aside a decision of the Public
Service St9ff Relations Board. Section 79 of the Public Service
Staff Relations Act provides for the designation of employees
in the Public Service whose functions are related to public
safety and who are therefore denied the right to strike. Follow
ing a decision by the Minister of Transport that, in the event of
a strike, commercial airlines should maintain their normal
operations, the applicant requested that 1,782 operational air
traffic controllers be designated under section 79. The respond
ent objected on the ground that the designation should not be
made on the assumption that in the event of a strike, the
normal commercial air services would be maintained, but on
the assumption that during a strike, the air traffic would be
reduced to those flights that were necessary in the interest of
the safety or security of the public. The Board considered that
its duty under section 79 was to determine the number of
employees of each class in the bargaining unit that would be
needed in order to provide the services necessary to ensure the
safety of the air services that, in the event of a strike, must be
maintained in the interest of the safety or security of the public.
It enumerated the duties that were essential in the event of a
strike and designated 272 employees and 151 alternates. The
applicant submitted that the Board erred because it wrongly
assumed the authority to decide what duties designated
employees should perform in the interest of the safety and
security of the public and the authority to determine what
services the Government of Canada and the Department of
Transport should provide in the event of a strike.
Held, the application is allowed. Section 79 merely empowers
the Board to designate the employees whose duties are related
to the security or safety of the public. It clearly does not
authorize the Board to regulate the effect of the designation by
prescribing the duties that designated employees will have to
perform in the event of a strike. The effect of the designation is
governed by the statute itself which, in paragraph 101(1)(c),
provides that a designated employee shall not "participate in a
strike". Section 79 merely empowers the Board to designate
employees or classes of employees on the basis of their duties as
they exist at the time the designation is made. The nature of
those duties at that time is, therefore, the only factor which the
Board may take into account in carrying out its functions under
section 79. All employees "whose duties consist in whole or in
part of duties the performance of which ... is or will be
necessary in the interest of the safety or security of the public"
must be designated by the Board even if the presence at work of
all those employees may not be necessary for the satisfactory
performance of those duties. It follows that the Board may not
discriminate between employees having similar duties by desig
nating only a few of them. The Board may not make a
designation on the basis of the duties that, in its view, an
employee should be required to perform in the event of a strike.
The Board does not have the power, under section 79, to
determine the number of employees that should be required to
stay at work, in the event of a strike, so as to provide the public
with the minimum level of services required in the interest of
public safety. The authority of the Board under section 79 is
merely to determine the employees or classes of employees who,
at the time the determination is made, have duties of the kind
described in section 79. The Board has neither the authority to
prescribe the work to be done by designated employees•,nor the
power to determine the number of employees that should be
required to work in the event of a strike so as to maintain the
level of services that the Board considers to be essential. The
sole authority of the Board is to determine the employees or
classes of employees whose duties, at the time the determina
tion is made, are of the kind described in section 79.
APPLICATION for judicial review.
COUNSEL:
R. Cousineau for applicant.
J. Nelligan, Q.C. for respondent.
J. McCormick for Public Service Staff Rela
tions Board.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Nelligan/Power, Ottawa, for respondent.
Legal Services, Public Service Staff Rela
tions Board, Ottawa, for Public Service Staff
Relations Board.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against a decision of the Public Service Staff
Relations Board rendered under section 79 of the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35.
Section 79 provides for the designation of em
ployees in the Public Service whose functions are
related to public safety and who, for that reason,
are denied the right to strike:
79. (1) Notwithstanding section 78, no conciliation board
shall be established for the investigation and conciliation of a
dispute in respect of a bargaining unit until the parties have
agreed on or the Board has determined pursuant to this section
the employees or classes of employees in the bargaining unit
(hereinafter in this Act referred to as "designated employees")
whose duties consist in whole or in part of duties the perform
ance of which at any particular time or after any specified
period of time is or will be necessary in the interest of the safety
or security of the public.
(2) Within twenty days after notice to bargain collectively is
given by either of the parties to collective bargaining, the
employer shall furnish to the Board and the bargaining agent
for the relevant bargaining unit a statement in writing of the
employees or classes of employees in the bargaining unit who
are considered by the employer to be designated employees.
(3) If no objection to the statement referred to in subsection
(2) is filed with the Board by the bargaining agent within such
time after the receipt thereof by the bargaining agent as the
Board may prescribe, such statement shall be taken to be a
statement of the employees or classes of employees in the
bargaining unit who are agreed by the parties to be designated
employees, but where an objection to such statement is filed
with the Board by the bargaining agent within the time so
prescribed, the Board, after considering the objection and
affording each of the parties an opportunity to make represen
tations, shall determine which of the employees or classes of
employees in the bargaining unit are designated employees.
(4) A determination made by the Board pursuant to subsec
tion (3) is final and conclusive for all purposes of this Act, and
shall be communicated in writing by the Chairman to the
parties as soon as possible after the making thereof.
(5) Within such time and in such manner as the Board may
prescribe, all employees in a bargaining unit who are agreed by
the parties or determined by the Board pursuant to this section
to be designated employees shall be so informed by the Board.
The respondent is an employee Association
which is and has been for many years the certified
bargaining agent for the air controllers in the
Public Service (the Air Traffic Control Group).
Until 1981, the Public Service Staff Relations
Board never had to designate the employees in that
unit whose services were essential to the safety and
security of the public. The applicant and the
respondent had always agreed to the designation of
a relatively small number of air controllers repre
senting between 10% and 15% of the employees in
the unit. Those agreements had been possible
because both parties had assumed that, in the
event of a strike by the air controllers, all commer
cial air traffic would stop. However, on November
20, 1980, following a decision by the Minister of
Transport that, in the event of a strike, commer
cial airlines should maintain their normal opera
tions, the applicant forwarded to the Public Ser
vice Staff Relations Board a request that 1,782'
operational air traffic controllers be designated
under section 79 of the Public Service Staff Rela
tions Act. The respondent objected to the employ
er's request. It conceded that the number of desig
nated employees proposed by the applicant was
reasonable if the designation was made on the
assumption that, in the event of a strike, the
normal commercial air services would be main
tained. It contended, however, that the designation
should not be made on that basis but, rather, on
the assumption that, during a strike, the air traffic
would be reduced to those flights that were neces
sary in the interest of the safety or security of the
public. The Board adopted that view. It considered
that its duty under section 79 was to determine the
number of employees of each class in the bargain
ing unit which would be needed in order to provide
the services necessary to ensure the safety of the
air services that, in the event of a strike, must be
maintained in the interest of the safety or security
of the public. On that basis, it proceeded to enu
merate (paragraph 41 of its decision) the various
duties that, in the event of a strike, would be
required to be performed by different classes of
employees in the unit in the interest of the safety
or security of the public and it determined (para-
graph 42 of its decision) the number of employees
of each class, in each work location, that would
have to perform those duties in the event of a
strike. As a result, it designated 272 employees
and 151 alternates to perform the duties outlined
' That figure was later reduced to 1,462.
in paragraph 41 of its decision.
Counsel for the applicant argued that the deci
sion of the Board was vitiated by three errors. He
said that:
(a) the Board wrongly held that, under section
79, the burden of proof rests equally on both the
employer and the bargaining agent;
(b) the Board wrongly assumed the authority to
decide what duties designated employees should
perform in the interest of the safety and security
of the public; and
(c) the Board wrongly assumed the authority to
determine what services the Government of
Canada and the Department of Transport
should provide in the event of a strike.
As was indicated at the hearing, it is not neces
sary to express any opinion on the applicant's first
contention relating to the burden of proof since it
appears that the decision reached by the Board in
this case was in no way dependent on the views it
expressed on that question.
The other two contentions put forward on behalf
of the applicant relate to the authority of the
Board under section 79. The applicant's counsel
argued that the Board, in this case, had rendered a
decision which it was clearly not empowered to
make by that section.
Counsel for the respondent answered that the
manner in which the Board had applied section 79
in this case was the only one which was in harmo
ny with what the parties had done in the past and
with the manifest purpose of the section. As that
purpose is clearly the protection of the safety and
security of the public, the section must be applied,
according to counsel, so as to deny the right to
strike only to the extent required to protect the
security and safety of the public. The decision of
the Board, said he, meets that requirement: it
protects both the public and the rights of the
members of the bargaining unit. He argued that
the strict interpretation proposed by counsel for
the applicant was not in harmony with the purpose
of the section since its result was:
1. to force designated employees to perform all
their normal duties including those having no
relation to the safety and security of the public;
and
2. to deny the right to strike to employees who,
in fact, could strike without endangering public
safety and security.
The powers and duties of the Board in relation
to the designation of employees are defined in
section 79. If the meaning of that section is clear,
it need not be interpreted and must be applied as it
is written, even if the result may appear to be
unjust or absurd. It is only if the section is ambig
uous that, in determining its meaning, consider
ation should be given to its object and to factors
such as injustice, hardship, absurdity and inconve
nience. What does section 79 say? It provides that
the Board shall determine "the employees or
classes of employees in the bargaining unit ...
whose duties consist in whole or in part of duties
the performance of which at any particular time or
after any specified period of time is or will be
necessary in the interest of the safety or security of
the public."
Even if the application of the section may give
rise to difficulties, it is clear, in my view, that it
merely empowers the Board to designate the
employees whose duties are related to the security
or safety of the public. It clearly does not author
ize the Board to regulate the effect of the designa
tion by prescribing the duties that designated
employees will have to perform in the event of a
strike. The effect of the designation is governed by
the statute itself which, in paragraph 101(1)(c),
provides that a designated employee shall not
"participate in a strike" 2 ; in other words, under
paragraph 101(1)(c), a designated employee, in
the event of a strike, must work as if there were no
strike.
It is also clear, in my view, that section 79
merely empowers the Board to designate em
ployees or classes of employees on the basis of
their duties as they exist at the time the designa-
2 The word "strike" is defined as follows in section 2 of the
Act:
2....
"strike" includes a cessation of work or a refusal to work or
to continue to work by employees in combination or in
concert or in accordance with a common understanding, or
a slow-down or other concerted activity on the part of
employees designed to restrict or limit output;
tion is made. The nature of those duties at that
time is, therefore, the only factor which the Board
may take into account in carrying out its functions
under section 79. All employees "whose duties
consist in whole or in part of duties the perform
ance of which . .. is or will be necessary in the
interest of the safety or security of the public"
must be designated by the Board even if the
presence at work of all those employees may not be
necessary for the satisfactory performance of those
duties. It follows that the Board may not discrimi
nate between employees having similar duties by
designating only a few of them. It also follows that
the Board may not make a designation on the basis
of the duties that, in its view, an employee should
be required to perform in the event of a strike. It
also follows that the Board does not have the
power, under section 79, to determine, as it has
done in this case, the number of employees that
should be required to stay at work, in the event of
a strike, so as to provide the public with the
minimum level of services required in the interest
of public safety. The authority of the Board under
section 79 is merely to determine the employees or
classes of employees who, at the time the determi
nation is made, have duties of the kind described
in section 79. The law, in this respect, is clear and,
in my view, requires no interpretation.
For these reasons, I would allow this applica
tion, set aside the decision under attack and refer
the matter back to the Board to be decided on the
basis that, under section 79, (a) the Board has
neither the authority to prescribe the work to be
done by designated employees nor the power to
determine the number of employees that should be
required to work in the event of a strike so as to
maintain the level of services that the Board con
siders to be essential, and (b) the sole authority of
the Board is to determine the employees or classes
of employees whose duties, at the time the deter
mination is made, are of the kind described in that
section.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of my brother Pratte J.
with which I fully agree and, as well, with his
proposed disposition of the section 28 application.
However, in view of the importance of the matter,
not only to the respondent herein but to those
other persons in the Public Service who may be
affected by the result, I propose to set out, as
briefly as possible, a somewhat different approach
whereby I reach the same conclusion. The facts
have been accurately summarized by Pratte J. so
that it is not necessary for me to repeat them. I
shall refer to further facts only to the extent
necessary to make my reasons intelligible.
On January 6, 1981, upon the request of counsel
for each of the parties, the Public Service Staff
Relations Board ("the Board") held a hearing for
the purpose of determining the jurisdiction of the
Board under section 79 of the Public Service Staff
Relations Act having regard to the fact that the
Minister of Transport had, on November 20, 1980,
advised the respondent that he proposed to apply
to the Board "for sufficient designations under
section 79 of the Public Service Staff Relations
Act to enable the commercial air system to operate
during any strike of Air Traffic Controllers."
Subsequently it was confirmed that the proposal
had been made pursuant to the Aeronautics Act,
R.S.C. 1970, c. A-3, to enable all government
aerodromes and air stations to be maintained
operational.
As a result of that hearing, in a decision dated
January 27, 1981, the Board held that:
The sole issue upon which we are being called upon to make a
decision is whether or not this Board is bound by or must take
into account the above referred to edict [that government
aerodromes and air stations be maintained operational at all
reasonable times] in making its determination under section 79
of the Act for the Air Traffic Control Group bargaining unit.
The Board found that nothing in the Public
Service Staff Relations Act ("the Act") imposed
any limitation on or in any way fettered the au
thority of the Board under section 79. That being
so, it held that it was not bound to take into
account ministerial or governmental pronounce-
ments as to the level of service to be maintained.
The Board went on to say that:
Further, in the absence of any definition or guidance in the
Public Service Staff Relations Act as to the interpretation or
meaning to be attached to the words "safety or security" in
relation to the public, the Board must apply the criteria it
deems to be appropriate, in any particular case, based on the
evidence and arguments placed before it by the parties of
interest.
10. Implicit in making its determinations as to the number or
classes of air traffic controllers needed for "designation" in the
instant case, is the requirement that the Board make a decision
as to the level of services that are necessary to be maintained at
federal government regulated airports in order to ensure the
safety or security of the public in the event of a lawful strike.
The level conceivably could be the same as that directed by the
Minister of Transport and/or the Government. We would add
that if the Board did reach such a decision, then presumably
there would be reason to "designate" the full complement of
operational air traffic controllers as proposed by the Employer.
On the other hand, the Board conceivably could find that a
substantially reduced level of services, possibly the level agreed
upon by the parties during previous negotiations, is sufficient
for the safety or security of the public. In such an event the
number of air traffic controllers required for "designation"
would be dramatically lower. Admittedly, in the latter circum
stances, or if the Board should find any level of service less than
that decided upon by the Minister of Transport and/or the
Government is necessary for the safety or security of the public,
the Government would have serious problems in implementing
its decision. Notwithstanding that fact, without amendment to
the Public Service Staff Relations Act, this Board has no
alternative but to determine the level of services which, in its
judgment, is or will be necessary for the safety or security of
the public. That determination, of course, can be made only
after the Board has heard and assessed the evidence and
arguments advanced by the parties in support of their respec
tive positions.
11. Accordingly, the Board directs that this matter be listed for
continuation of hearing at which time it will entertain the
evidence of the parties as to the airport services that are
required to be performed by members of the Air Traffic
Control Group bargaining unit in the interest of the safety or
security of the public and the number and classes of air traffic
controllers that need be designated in order to maintain that
level of service.
It was as a result of that direction that the
hearing was held which resulted in the decision
which was rendered on April 7, 1981, and which is
sought to be set aside in these proceedings. I have
quoted from the January 27 decision at length
because it shows the reasoning process which led
the Board to conclude that evidence must be
adduced before it to enable it to determine the
level of service to be provided. In so concluding, in
my view, the Board erred in its interpretation of
the authority conferred upon it by subsection
79(1).
As was pointed out by my brother Pratte J., the
subsection merely empowers the Board to desig
nate the employees whose duties are related to the
safety or security of the public. It does not author
ize the Board to determine the level of service to
be provided. Counsel for the employer apparently
advanced this proposition to the Board early in the
proceedings leading to the April 7 decision. In
answer thereto the Board had this to say:
With respect, it would seem that counsel has misconstrued the
reference to "level of services" in the Board's decision of
January 27. A careful reading of paragraph 10 of that decision
makes it clear that it is the level of services to be provided by
air traffic controllers that is referred to. It should be self-evi
dent that in order to determine which air traffic controllers
(numbers and classes) should be designated under section 79, it
is necessary to determine which services (level of services)
provided by air traffic controllers must be maintained in the
interest of the safety or security of the public in the event of a
lawful strike. To be sure, certain consequences about levels of
services other than air traffic control may flow from a determi
nation under section 79 of the Act—decisions by the Minister
of Transport regarding operations of airports, by private air
carriers regarding the scheduling or cancellation of flights, by
pilots of commercial or private aircraft whether or not to fly,
etc.—but it is not the Board that directs what these levels of
services should be. [Emphasis added.]
Later in these reasons, in paragraph 31, the
Board summarized the approach it intended to and
did adopt in making its determination:
31. In the absence of an agreement of the parties the Board
must now proceed to make its determination of designated
employees in accordance with section 79 of the Act. It is
consistent with the language of section 79 of the Act and with
the Board's jurisprudence since 1969 to state the issues in the
present case as follows. Given the fact that certain air services
must be maintained in the interest of the safety or security of
the public and the extent to which the safety or security of
aircraft operations are dependent on effective air traffic con
trol: (i) What duties are performed by air traffic controllers the
continued performance of which is necessary in the interest of
the safety or security of the public? (ii) What other possible
but unpredictable situations involving the safety or security of
the public would require that adequate air traffic control
services be available if these contingencies were to arise? (iii)
In light of (i) and (ii), what are the numbers and distribution of
air traffic controllers that, pursuant to section 79 of the
PSSRA, are or would be necessary in the interest of the safety
or security of the public, and must be so designated by the
Board?
These clarifications of the Board's views serve a
useful purpose in that they demonstrate the error
made by the Board more clearly, perhaps, than the
quotations earlier set out herein from the Board's
decision of January 27, 1981. They show that the
Board perceived its duty to be, first, "to determine
which services ..." provided by the air traffic
controllers must be maintained and, second, to
determine the number and classes of air traffic
controllers to be designated to provide such ser
vices. But that is not what section 79 directs. As I
read the section, it does not impose on the Board
the duty of determining which services rendered by
the controllers must be maintained in the event of
a strike. Moreover, it does not require or authorize
the Board to determine the number or classes of
employees to be designated to perform those duties
or to prescribe limitations on the scope of the
duties of various employees or classes of employees
for such purpose.
The sole duty of the Board pursuant to subsec
tion 79(1) is to determine, before a conciliation
board has been established, what employees or
classes of employees in the bargaining unit are, at
the date the matter is being determined, perform
ing duties which are necessary for the safety and
security of the public. Neither the wording of the
subsection taken by itself nor in the context of the
Act as a whole contemplates that such a determi
nation is to be made on the basis of the safety and
security necessities of the public only in a strike
situation. It follows that the subsection does not
authorize the Board to designate duties to be
performed or the extent of services to be rendered
in the event of a strike. The words of the section
are clear, unambiguous and unequivocal and do
not require an interpretation which enlarges the
ambit of the Board's duty for the implementation
of the direction contained therein. The Board's
fundamental error was in arrogating to itself a
power which the section did not confer upon it.
The adoption of the construction of the subsec
tion which Pratte J. and I propose, does not, as
counsel for the respondent urged that it did,
deprive a substantial portion of the bargaining unit
of its right to strike. The right of public servants to
strike is qualified by the Act. If agreement by the
employer and the employees or the bargaining
agent, can be reached as to which employees are to
be designated that agreement will end the matter.
On the other hand absent agreement, the Board
designates those employees or classes of employees
whose duties bring them within subsection 79(1). 3
Paragraph 101(1)(c) 4 then operates to preclude
such designated employees from participating in a
strike. It is the operation of those sections of the
Act which deprives the employees so designated of
the strike option. The fact that such persons may
have elected to bargain for a collective agreement
through the conciliation/strike process rather than
through arbitration, not knowing that they would
become designated employees and thus not permit
ted to strike, cannot be permitted to influence or
affect the construction to be given subsection
79(1).
Nor can the fact that in the past the employer
and the bargaining agent were able to agree on the
number of air traffic controllers to be designated
before a strike have any influence on the interpre
tation given. The task imposed on the Board is to
carry out the will of Parliament as expressed in the
Act—no more, no less. If that necessitates reach
ing a result which differs from that previously
reached by mutual agreement of the parties, that
fact cannot in any way affect the construction of
3 79. (1) Notwithstanding section 78, no conciliation board
shall be established for the investigation and conciliation of a
dispute in respect of a bargaining unit until the parties have
agreed on or the Board has determined pursuant to this section
the employees or classes of employees in the bargaining unit
(hereinafter in this Act referred to as "designated employees")
whose duties consist in whole or in part of duties the perform
ance of which at any particular time or after any specified
period of time is or will be necessary in the interest of the safety
or security of the public.
4 101. (1) No employee shall participate in a strike
(c) who is a designated employee.
the section. Past practice does not, as the Board
seemed to think, provide a guide for it to consider
in designating employees. The only guide is pro
vided by the words of subsection 79(1). Those
words - do not support the construction given by the
Board.
For the foregoing reasons, as well as for the
reasons expressed by Pratte J., I would dispose of
the application in the manner proposed by him.
* * *
The following are the reasons for judgment
rendered in English by
KERR D.J.: I have considered the reasons for
judgment of Pratte J. and Urie J. The relevant
facts and issues are set forth in their reasons, with
which I agree, and therefore I need not repeat
them here. I also agree with their proposed disposi
tion of this section 28 application.
It is unquestionable that the air traffic control
lers normally exercise a substantial control of air
traffic in Canada, including a large volume of
commercial air passenger operations of the various
airlines. The occupational group definition of the
Air Traffic Control Group in the Canada Gazette,
March 25, 1967, Vol. CI, No. 12, quoted in the
minority decision of two members of the Public
Service Staff Relations Board, reads as follows:
The control of air traffic to ensure its safe and expeditious
movement through controlled airspace and on the maneuvering
areas of airports.
The employer's statement for designation of air
traffic controllers under section 79 of the Public
Service Staff Relations Act, submitted to the
Board on November 20, 1980, was made following
a decision under the Aeronautics Act to maintain
all government aerodromes and air stations opera
tional at all reasonable times.
In making a determination under section 79 of
what performance of duties of air traffic control
lers is or will be necessary in the interest of the
safety or security of the public (where in this
instance objection to the employer's submission
had been filed with the Board) the Board must
ascertain what, in fact, the duties of the controllers
are at the time of such determination, and it is on
the basis of such existing duties that the Board
must determine whether the controllers have
duties that consist in whole or in part of duties the
performance of which is or will be necessary in the
interest of the safety or security of the public (not
what "operations" of the airlines are necessary in
that interest) and what designation should accord
ingly be made. It appears to me that on this
occasion the majority of the members of the Board
did not make their determination of designation on
the basis of those duties. On the contrary, in
paragraph 41 of their decision they specified cer
tain duties as being necessary in the interest of the
safety or security of the public; and it is clear that
the duties there specified did not include the then
existing duties of the air traffic controllers appli
cable to the current normal commercial air traffic.
What the majority members of the Board did (and
the view of the dissenting minority) is stated in the
following concluding sentences of the minority
decision:
The. Board's decision is to restrict the provision of safety or
security to a very limited portion of the public and we are
unable to concur in this. We would have designated all of those
air traffic controllers who normally fulfill the operational func
tion of ensuring the safe and expeditious movement of aircraft
through controlled air space and on the manoeuvring areas of
airports.
For the above reasons, and the reasons expressed
by Pratte J. and Urie J., I agree with the disposi
tion of this section 28 application as proposed by
Pratte J. and agreed by Urie J.
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.