Judgments

[1995] 3 F.C. 174

T-1879-94

Gaétan Laflamme (Applicant)

v.

George S. Redling, in his capacity as Superintendent of Bankruptcy, the Hon. John Manley, in his capacity as Minister of Industry, Science and Technology, and Attorney General of Canada and the Hon. Fred Kaufman, in his capacity as delegatee of the powers of the Minister of Consumer and Corporate Affairs (Respondents)

and

Samson, Bélair, Deloitte & Touche (Intervener)

Indexed as: Laflamme v. Canada (Superintendent of Bankruptcy) (T.D.)

Trial Division, Noël J.—Montréal, May 23; Ottawa, May 26, 1995.

Bankruptcy — Trustee in bankruptcy licence cancellation — Judicial review of decision of Minister’s delegate lacked jurisdiction to hear application for declaration Bankruptcy Act, ss. 7, 14(2) constitutionally invalid — Power to interpret legislation in light of Charter must be found in enabling legislation — Act not authorizing tribunal to consider constitutionality of powers.

Constitutional Law — Charter of Rights — Enforcement — Cancellation of trustee in bankruptcy licence — Minister’s delegate asked to declare Bankruptcy Act, ss. 7, 14(2) of no force, effect in instant case — Whether tribunal having jurisdiction under Charter, s. 24(1) or Constitution Act, 1982, s. 52(1) — Granting remedy sought would destroy legislative scheme — Review of case law on powers of administrative tribunals to consider Charter issues — Intention of Parliament — Inconceivable Parliament intending to give tribunal lacking expertise, resources power to decide constitutional question.

Administrative law — Judicial review — Minister’s delegate under Bankruptcy Act deciding lacking jurisdiction to declare sections of Act invalid on Charter grounds — Powers of administrative tribunals to grant Charter remedies — Intention of Parliament may be indicated expressly or by implication — That tribunal having power to interpret legislation does not mean may consider Charter issues — Applicant asking tribunal to abolish legislative mandate — Inconceivable Parliament intending to give power to decide constitutional question to ad hoc tribunal lacking constitutional expertise, settled administrative structure, resources.

This was an application for judicial review of the Minister’s representative’s decision that he lacked jurisdiction to hear an application for a declaration that Bankruptcy Act, section 7 and subsection 14(2) were invalid because they infringed the rules of natural justice. These provisions allow the Superintendent of Bankruptcy to make a report and recommendations after an investigation determines that a licensee has not performed his duties properly, and permit the Minister to cancel or suspend a licence after considering the report and providing the licensee a reasonable opportunity to be heard. The Superintendent investigated the actions of the applicant and submitted a report to the Minister recommending that the applicant’s licence as a trustee in bankruptcy be cancelled. Before the hearing on the merits, the applicant applied for the declaration of invalidity.

Held, the application should be dismissed.

The function of the Minister’s representative under subsection 14(2) is akin to that of a tribunal in that it involves at least the exercise of a quasi-judicial power. Though an administrative tribunal cannot make a formal ruling invalidating a provision as contemplated by Charter, section 24, it may consider a particular provision to be invalid within Constitution Act, 1982, subsection 52(1) for the purposes of the case before it. To do so the tribunal must have the power to interpret the legislation at issue and the power to interpret that legislation in light of the Charter. Such power must be conferred by the enabling legislation. Whether such a power exists depends on Parliamentary intent, either express or implied.

If the relief sought herein were granted, it would mean the destruction of the legislative scheme established by section 7 and subsection 14(2). There was no legislative intent that the Minister or his representative should be able to declare the legislation creating their position constitutionally invalid. Powers conferred on the Minister or his representative by the Act involve considering the Superintendent’s report, determining whether the facts alleged constitute infringement of the Act as it applies to the trustee’s professional conduct, if necessary extending the investigation, and finally deciding on the appropriate penalty, if any. Nowhere does the Act authorize the tribunal to consider the constitutionality of the grant of these powers or give it the power to refuse to exercise the functions conferred on it by the Act so as to question its own existence.

The intent of Parliament takes priority over practical considerations, but certain practical considerations also supported the conclusion herein. The tribunal, consisting of the Minister or his representative, is ad hoc. It has no settled administrative structure and no legal resources. It does not have the wherewithal to deal adequately with a question as to its very existence. Also, nothing in the Act or in the Minister’s power of delegation requires that the Minister’s representative be a legal professional. It is inconceivable that Parliament intended to give the tribunal the power to decide a constitutional question when it has no constitutional expertise, and neither the resources nor the necessary organization to handle it.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Aeronautics Act, R.S.C., 1985, c. A-2, s. 6.5 (as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1).

An Act to amend the Bankruptcy Act and to amend the Income Tax Act in consequence thereof, S.C. 1992, c. 27, s. 9(2),(3).

Bankruptcy and Insolvency Act (formerly Bankruptcy Act), R.S.C., 1985, c. B-3 (as am. by S.C. 1992, c. 27, s. 2), ss. 6, 7, 14(2).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 24(1).

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1).

Labour Relations Act, R.S.O. 1980, c. 228, s. 2(b).

Pension Act, R.S.C., 1985, c. P-6, s. 42(6) (as am. by S.C. 1990, c. 43, s. 18).

CASES JUDICIALLY CONSIDERED

APPLIED:

Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 50 Admin. L.R. 1; 36 C.C.E.L. 117; 91 CLLC 14,023; 4 C.R.R. (2d) 12; 126 N.R. 1.

DISTINGUISHED:

Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep 790; Douglas/ Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; (1990), 77 D.L.R. (4th) 94; [1991] 1 W.W.R. 643; 52 B.C.L.R. (2d) 68; 91 CLLC 17,002; 118 N.R. 340; Canada (Attorney General) v. Gill, [1992] 3 F.C. 3 (1992), 16 Admin. L.R. (2d) 215; 52 F.T.R. 81 (F.C.T.D.); Canada (Attorney General) v. Racette- Villeneuve, [1995] A.C.F. No. 581 (T.D.) (QL).

REFERRED TO:

Blais v. Basford, [1972] F.C. 151 (C.A.).

APPLICATION for judicial review of the Minister’s representative’s decision that he lacked jurisdiction to hear an application for a declaration that Bankruptcy Act, section 7 and subsection 14(2) were constitutionally invalid. Application dismissed.

COUNSEL:

Bernard Boucher and Jean-Yves Fortin for applicant.

Joanne Granger for respondents the Hon. John Manley and Attorney General of Canada.

Marcel Gauvreau for respondent Superintendent of Bankruptcy.

Gérald R. Tremblay and Louis Brousseau for intervener.

SOLICITORS:

Bélanger, Sauvé, Montréal, for applicant.

Deputy Attorney General of Canada for respondents the Hon. John Manley and Attorney General of Canada.

Bankruptcy Branch, Montréal, for respondent Superintendent of Bankruptcy.

McCarthy Tétrault, Montréal, for intervener.

The following is the English version of the reasons for order rendered by

Noël J.: The applicant is seeking judicial review of a decision by the Hon. Fred Kaufman, the representative of the Minister of Industry, Science and Technology, on July 12, 1994 that he did not have jurisdiction to hear the applicant’s application for a declaration of invalidity based on the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

In 1991 the Superintendent of Bankruptcy began an investigation into the actions of the applicant, who holds a trustee licence. This investigation was begun under the powers conferred on him by section 6 of the Bankruptcy Act, R.S.C., 1985, c. B-3 (hereinafter the Act). In November 1992, all the powers and duties of the Minister of Consumer and Corporate Affairs devolved on the Minister of Industry, Science and Technology. Additionally, the Act was repealed and replaced by the Bankruptcy and Insolvency Act [S.C. 1992, c. 27, s. 2].

At this time transitional provisions were introduced. First, subsection 9(2) of An Act to amend the Bankruptcy Act and to amend the Income Tax Act in consequence thereof (hereinafter the transitional Act) [S.C. 1992, c. 27] provides that the provisions of the old Act continue to apply where, before August 1, 1992, the Superintendent had communicated in writing to a licensee his intention to make a report to the Minister under section 7 of the Act, which was the case here. Second, subsection 9(3) of the transitional Act authorizes the Minister to delegate the powers, duties and functions under subsection 14(2) to any person other than the Superintendent.

In July 1993, pursuant to section 7 of the Act or subsection 9(2) of the transitional Act, the Superintendent of Bankruptcy submitted a report to the Minister of Industry, Science and Technology regarding the applicant’s conduct, and this report was accompanied by a recommendation “that the licence of the trustee Gaétan Laflamme be cancelled and the latter be divested of his functions as trustee in all estates administered by him”. On September 26, 1993 the Hon. Jean Charest, then Minister of Industry, Science and Technology, delegated his powers, duties and functions under subsection 14(2) of the Act to Mr. Robert Archambault pursuant to subsection 9(3) of the transitional Act. On October 25, 1993 federal elections were held and the government to which the Hon. Jean Charest belonged was defeated. On November 5, 1993 the Hon. John Manley, the new incumbent, informed the applicant that the delegation to Mr. Robert Archambault had been cancelled and these duties assigned to the Hon. Fred Kaufman. The hearing of this case on the merits was to take place on May 17, 18 and 19, 1994.

On May 25, 1994 the applicant served on the respondent an application for a declaration of invalidity asking the Hon. Fred Kaufman to declare section 7 and subsection 14(2) of the Act of no force or effect in the instant case and as such to reject the Superintendent’s report and declare the proceedings brought against Gaétan Laflamme terminated. This application was to be made to the Hon. Fred Kaufman on June 3, 1994. Before it was made the Attorney General of Canada indicated his intention to argue that the application was inadmissible. It was agreed that the only point to be discussed at the hearing of June 3, 1994 would be the argument of inadmissibility made against the application. By a decision on July 12, 1994 the Hon. Fred Kaufman allowed the argument of inadmissibility and refused to hear the applicant’s application, finding that he lacked jurisdiction to do so. The applicant subsequently filed an application for judicial review against this decision.

ISSUES

The applicant contended that the Hon. Fred Kaufman erred in law in ruling that he did not have jurisdiction to declare that section 7 and subsection 14(2) of the Bankruptcy Act, made applicable pursuant to subsections 9(2) and (3) of the transitional Act, were of no force or effect. He alleged that:

[translation] The Hon. F. Kaufman had complete jurisdiction to rule that section 7 and subsection 14(2) of the Act were invalid;

the investigation and hearing process created by section 7 of the Act infringes both the procedural and substantive rules of natural justice, in that inter alia:

it infringes the applicant’s rights to know the facts alleged against him;

neither the “tribunal” nor the applicant has any power of summoning witnesses;

the “tribunal” does not demonstrate a minimal degree of impartiality and independence.

He accordingly asked this Court to declare the decision by the Hon. Fred Kaufman on July 12, 1994 void or illegal and to direct the Hon. Fred Kaufman to rule on the constitutional validity of section 7 and subsection 14(2) of the Act for the purposes of the case at bar.

ANALYSIS

Applicable legislation

Before their repeal section 7 and subsection 14(2) of the Act read as follows:

7. When any investigation has been made by the Superintendent or any one on his behalf, and it appears that any licensee under this Act has not performed his duties properly or has been guilty of any improper conduct or has not fully complied with the law with regard to the proper administration of any estate, the Superintendent may make a report to the Minister together with such recommendations to the Minister as the Superintendent may deem advisable.

…

14. …

(2) The Minister, after consideration of any report received by him from the Superintendent pursuant to section 7, and after a reasonable opportunity has been afforded the licensee to be heard in respect thereof, and on such further inquiry and investigation as he deems proper, may suspend or cancel the licence of any licensee and in that case shall direct that the licensee be removed as trustee of all estates being administered by that licensee and may appoint any other licensee or licensees to act as trustee of all or any of those estates in the place or stead of the trustee whose licence has been suspended or cancelled.

Subsection 9(2) of the transitional Act provides that section 7 and subsection 14(2) continue to apply when the report on which the disciplinary procedure is based has been completed pursuant to the old Act. Additionally, subsection 9(3) of the transitional Act provides that where the hearing to which the licensee is entitled under subsection 14(2) has not begun at the coming into force of the section the Minister may delegate the powers, duties and functions under subsection 14(2) to any person other than the Superintendent. These subsections read as follows:

9. …

(2) Where, before the coming into force of this section, the Superintendent had communicated in writing to a licensee the Superintendent’s intention to make a report to the Minister in respect of that licensee under section 7 of the Bankruptcy Act, as that section read immediately before the coming into force of section 6 of this Act, then

(a) the following provisions of the Bankruptcy Act continue to apply, in so far as they relate to the investigation of that licensee pursuant to section 7 of that Act:

(i) sections 7 and 8, as those sections read immediately before the coming into force of section 6 of this Act, and

(ii) subsections 14(2) and (3), as those subsections read immediately before the coming into force of this section; and

(b) to the extent that the provisions of the Bankruptcy Act referred to in paragraph (a) continue to apply, sections 14.01 to 14.03 of the Bankruptcy and Insolvency Act, as enacted by subsection (1) of this section, do not apply.

(3) Where

(a) by virtue of subsection (2), subsection 14(2) of the Bankruptcy Act continues to apply, and

(b) the hearing to which the licensee is entitled under subsection 14(2) had not begun at the coming into force of this section,

the Minister may delegate the Minister’s powers, duties and functions under subsection 14(2) to any person other than the Superintendent, by written instrument, on such terms and conditions as are therein specified.

The conditions for application of subsections 9(2) and (3) of the transitional Act are not at issue here so that the disciplinary procedure under section 7 and subsection 14(2) becomes applicable.

Under that scheme the disciplinary procedure is in three stages. First, the Superintendent makes an inquiry into the trustee’s conduct. In the case at bar the Superintendent appointed an investigator who proceeded to audit some twenty-nine cases for all of which the applicant was responsible as an employee of the firm Thorne Riddell Inc. As a consequence of that inquiry the Superintendent prepares a report to determine whether the trustee has not performed his duties properly, has been guilty of any improper conduct or has not fully complied with the law with regard to the proper administration of any estate. With the said report the Superintendent makes such recommendations as he deems advisable. In the case at bar the Superintendent’s report concluded there had been improper conduct and recommended that the applicant’s licence be cancelled. Thirdly, the report is sent to the Minister, who must afford the trustee a reasonable opportunity to be heard and must decide on the appropriate penalty, if any. In the case at bar the Minister delegated the duties conferred on him by subsection 14(2) of the Act pursuant to subsection 9(3) of the transitional Act to the Hon. Fred Kaufman and the applicant submitted his application to invalidate to the latter before the hearing on the merits began.

Disposition

There is no question that the function of the Minister or his representative under the powers conferred by subsection 14(2) of the Act is akin to that of a tribunal in that it involves at the very least the exercise of a quasi-judicial power.[1] It is also now well settled that a tribunal does not have to be a court of competent jurisdiction within the meaning of subsection 24(1) of the Charter to have the authority needed to assess the constitutional validity of the legislation which it is called upon to apply. Though an administrative tribunal cannot make a formal ruling invalidating a provision as contemplated by subsection 24(1) of the Charter, it may nonetheless consider a particular provision of the Act to be invalid within the meaning of subsection 52(1) of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] for the purposes of the case before it.[2]

That being said, administrative tribunals do not all have this power. The tribunal must first have the power to interpret the legislation at issue and, beyond this, the power to interpret that legislation in light of the Charter. This power is not one which Parliament entrusts to an administrative tribunal lightly.[3] Whether such a power exists depends on what Parliament intended. This is what La Forest J. said in Tétreault-Gadoury, supra, at page 32, as follows:

Because an administrative tribunal is a creature of the state, it follows that the state should … have power to confer upon the tribunal the authority to consider Charter issues and, equally, to restrict the tribunal from considering such issues.

What Parliament intends in this regard may be indicated expressly or by implication. To determine its intention La Forest J. adopted the following approach in Cuddy Chicks, supra, at page 14:

Thus, a tribunal prepared to address a Charter issue must already have jurisdiction over the whole of the matter before it, namely, the parties, subject matter and remedy sought.

Applying this approach in the aforementioned case La Forest J. made the following analysis at page 15:

It must first be determined whether the Board has jurisdiction over the whole of the matter before it …. The issue here centres on its jurisdiction over the subject matter and remedy. The subject matter … cannot be characterized simply as an application for certification, which would certainly fall within the authority of the Board. This is an application which requires the Board to subject s. 2(b) of the Act to Charter scrutiny in order to determine whether the application for certification is properly before it. Similarly, the remedy of certification requires the Board to refuse to give effect to s. 2(b) of the Act because of inconsistency with the Charter. Since the subject matter and remedy in this case are premised on the application of the Charter, the authority to apply the Charter must be found in the Board’s enabling statute.

Based on this analysis La Forest J., after noting that the tribunal had exclusive jurisdiction “to determine all questions of fact or law that arise in any matter before it” and that the legislature had conferred authority on it to decide points of law affecting its jurisdiction, concluded that it had been empowered to apply the Charter to the particular question raised in that case. This is the same approach which was used by the Supreme Court shortly before in resolving the issue in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570.[4]

In the case at bar the Court must first determine whether the Minister’s representative had jurisdiction over the entire matter before him. The question concerns the jurisdiction of the Hon. Fred Kaufman over the subject-matter and remedy sought.[5] The subject-matter involves not simply considering the Superintendent’s report and deciding whether the applicant’s licence should be cancelled, which was undoubtedly within his jurisdiction, but an application requiring him to examine section 7 and subsection 14(2) in light of the Charter in order to rule on their constitutional validity. Since the subject-matter and remedy sought assume that the Charter is applicable, the power to apply the Charter to deal with the subject-matter and grant the remedy sought must be in the Act.

In this connection the applicant argued that in rendering his decision on the merits the Hon. Fred Kaufman would have to rule on the Superintendent’s report pursuant to section 7 of the Act and interpret the relevant provisions of the Bankruptcy and Insolvency Act in light of the evidence in order to determine whether the applicant has complied with its terms in performing his duties as trustee. He concluded that since the Hon. Fred Kaufman is empowered to interpret the Act he is also empowered to interpret the Charter.

I note first that the mere fact that a tribunal has the power to interpret and apply its enabling legislation does not as such mean that Parliament intended to confer on that tribunal the power to consider any point of law involving the Charter. Every tribunal is required to apply legislation and as such must interpret it. If the analysis were to stop at that point the lengthy discussion undertaken by the Supreme Court in both Tétreault-Gadoury, supra, and in Cuddy Chicks, supra, as well as in Douglas/Kwantlen, supra, would be superfluous. It seems clear that the legislative grant of authority must not only give the tribunal the power to interpret its enabling legislation, jurisdiction over the subject-matter resulting from reliance on the Charter and the remedy sought must also be found in the enabling legislation and be part of the powers which Parliament intended to confer on it.

What the applicant is seeking in the case at bar is the destruction of the entire legislative scheme put in place by section 7 and subsection 14(2) of the Act. In fact, he is asking the Hon. Fred Kaufman to hear an application the end result of which will be to simply abolish his legislative mandate. I cannot find any legislative intent whatever in the Act that the Minister or his representative should be able to declare the legislation creating their position constitutionally invalid. As such neither the subject-matter nor the remedy sought is contained in the enabling legislation.

Powers conferred on the Minister or his representative by the Act involve considering the Superintendent’s report, determining whether the facts alleged constitute an infringement of the Act as it applies to the trustee’s professional conduct, if necessary extending the investigation and finally deciding on the appropriate penalty, if any. Nowhere does the Act authorize the tribunal to consider the constitutionality of the grant of these powers or give it the power to refuse to exercise the functions conferred on it by the Act so as to question its own existence.

By contrast, the applicant is not asking the Minister’s representative to rule on the constitutional validity of any of the legislative provisions he will have to consider in exercising his mandate in order to make his decision.[6] He is also not asking the tribunal to consider the extent of its jurisdiction in order to determine whether, for example, the Superintendent’s report is before him pursuant to the terms of the Act or whether any legislative limitation on his jurisdiction is valid in constitutional terms.[7] In either of these cases it was open to the applicant to argue that the subject-matter fell within the scope of the enabling legislation since it had to do with the constitutional validity of provisions which the tribunal had to apply and a fortiori had to interpret in carrying out its statutory mandate. However, that is not the case. The applicant is challenging the legislation creating the tribunal and asking its presiding member to rule that it does not exist. The Act does not give him such a power.

Both Cuddy Chicks, supra, and Douglas/Kwantlen, supra, indicate that an administrative tribunal’s jurisdiction to consider a matter involving the Charter depends on the particular question which it is called upon to answer. This is clearly apparent from the reasons of La Forest J., when he bases his analysis of the subject-matter and remedy sought on the particular constitutional question that was raised.[8] A tribunal may thus be given the power to interpret certain issues involving the Charter without having the power to decide others. In all cases, the jurisdiction to do so must derive from the enabling legislation and the intent of Parliament takes priority over any other practical consideration which might operate for or against the grant of such a power.[9]

In the case at bar, however, several of the practical considerations identified by the Supreme Court in that trilogy[10] militate in favour of the conclusion at which I have arrived. I would add that Parliament must have had some of these considerations in mind.

First, the tribunal consisting of the Minister or his representative is ad hoc in nature. It is required to sit sporadically, when necessary. It has no settled administrative structure and no legal resources. The representatives are to be chosen by the Minister. They may come either from the private or public sectors and are appointed only for the specific disciplinary proceeding for which they have been designated. In purely practical terms, the tribunal has none of the wherewithal that would enable it to deal adequately with the fundamental point raised by the applicant, who I repeat is questioning the very existence of the tribunal.

Second, while the Minister’s representative in the case at bar is a legal professional there is nothing in the Act or in the Minister’s power of delegation to require this kind of qualification, whether in the representative or in the Minister when he chooses to exercise these duties himself. On the contrary, a trustee or chartered accountant would at first glance appear to be just as qualified, if not more so, to carry out the statutory mandate contemplated by the Act. Ideally, a person having some degree of expertise in professional conduct standards applicable to trustees would be appointed. Considering the nature of the constitutional challenge raised, I do not see what value the viewpoint of a person with such qualifications would have in the resolution of this debate.

As the constitutional question raised is directed at the very existence of the tribunal, it does not in any way require the kind of expertise contemplated by the Act since it does not either directly or indirectly touch upon the legislative provisions which the tribunal is called upon to apply and interpret in performing its legislative mandate. The significance of the foregoing is made readily apparent when contrasted with the comments of the Supreme Court in Cuddy Chicks, supra, where it is said with respect to the administrative tribunal there in question at page 18:[11]

It is apparent, then, that an expert tribunal of the calibre of the Board can bring its specialized expertise to bear in a very functional and productive way in the determination of Charter issues which make demands on such expertise. [My emphasis.]

In the case at bar it seems inconceivable that Parliament intended to give the tribunal the power to decide a constitutional question when it has, in principle, no constitutional expertise to contribute on this question and in addition it has neither the resources nor the necessary organization to handle it. Although this conclusion is not based on any express provision of the Act, it is just as clear as if it were.

I realize that in saying this I am denying the applicant one of the important benefits mentioned by the Supreme Court in Douglas/Kwantlen, supra and Tétreault-Gadoury, supra, namely having the constitutional question raised by him decided quickly at the first level without the need of proceeding to a court in which costs are higher.[12] At the same time, the intent of Parliament takes priority over any other consideration and if the applicant’s constitutional rights are indeed being infringed, he is not without remedy.

For these reasons, the Hon. Fred Kaufman properly refused to hear the applicant’s application based on the Charter. The application for review is accordingly denied.

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