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Statutes and Statutory Interpretation - Temporal Application of Legislation

1. Terminology Note re Retroactive v Retrospective

The vast majority of legislation is prospective, acting in the future only. However two concepts which bear on the past are 'retroactive' and 'retrospective'. The distinction between the two is set out in Burlington (City) v. Burlington Airpak Inc. (Ont CA, 2017) [para 39]:
[39] There is a distinction drawn between retroactive and retrospective legislation, as explained by Iacobucci J. in Benner v. Canada (Secretary of State), 1997 CanLII 376 (SCC), [1997] 1 S.C.R. 358, at para. 39:
The terms, “retroactivity” and “retrospectivity”, while frequently used in relation to statutory construction, can be confusing. E. A. Driedger, in “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264, at pp. 268-69, has offered these concise definitions which I find helpful:
A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event. [Emphasis in original.]
2. Procedural and Substantive Legislation in Operation

This principle applies when a prospective amendment is made to substantive ('rights') law. While any procedural rule takes effect immediately upon the amendment [Canadian Imperial Bank of Commerce v Deloitte & Touche (Ont CA, 2014) [paras 24], the 'old' substantive law persists with respect to a pre-existing case. And it persists as far as pre-amendment rights are still at issue in any case, current or future.

This is an artifact of legal 'vesting', the idea that once you have claimed rights (if you claim them before the rights has been rescinded by amendment), then they can't be taken away.

. Stanley v. Office of the Independent Police Review Director

In Stanley v. Office of the Independent Police Review Director (Ont CA, 2020) the Court of Appeal held that when an administrative matter is sent back to the tribunal (here, the 'Office of the Independent Police Review Director') after a court appeal, and the procedural law had changed since the time of the original events, that the tribunal may apply the new procedural rules for the new hearing:
[77] While I would return this case to the TPS for hearing, the case is not transported back to 2015. The Director now has the authority of reconsideration under r. 17. Procedural laws are intended to have immediate effect and avoid the strictures of retrospectivity: see Peel (Police) v. Ontario (Special Investigations Unit), 2012 ONCA 292, 110 O.R. (3d) 536, at paras. 71-77; R. v. R.S., 2019 ONCA 906, at para. 27; and R. v. Chouhan, 2020 ONCA 40, 60 C.R. (7th) 1, at paras. 186-191. Consequently, there is no barrier to the Director applying the new Rules of Procedure to this case.
. R. v. Dineley

In R. v. Dineley (SCC, 2012) the Supreme Court of Canada considered the doctrine that procedural legislative amendments take effect immediately in all cases, but substantive legislative amendments do not take effect in already existing cases. The issue here was what happens with evidence amendments:
II. Analysis

[9] Whether the Amendments apply retrospectively has been a hotly contested issue. As MacPherson J.A. mentioned in the instant case, a large number of provincial and superior court judges across the country have expressed conflicting opinions in this regard.

[10] There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256, at pp. 266-67; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, at pp. 331-32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and 62; Wildman, at p. 331).

[11] Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately (P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 191). Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but in discerning whether they affect substantive rights.

[12] Moreover, a further factor may be relevant to the determination of whether the Amendments apply retrospectively. It is whether they require evidence that the accused had no reason to gather under the former legislation.

[13] It will be helpful to reproduce the relevant portions of the Amendments, which came into force while Mr. Dineley’s trial was under way:
258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

. . .

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if [list of conditions to be met], evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

. . .

(d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of
(i) the amount of alcohol that the accused consumed,

(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or

(iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;
(It should be noted that the temporal application of the second presumption of identity provided for in s. 258(1)(d.1) of the Criminal Code is not at issue in this case.)

[14] In St-Onge Lamoureux, I conclude that the first requirement that the approved instrument was malfunctioning or was operated improperly, as set out in s. 258(1)(c) and qualified by s. 258(1)(d.01), infringes the right to be presumed innocent protected by s. 11(d) of the Canadian Charter of Rights and Freedoms, but that the infringement is justified under s. 1. I also find in that case that the other two requirements of s. 258(1)(c) — (1) that a causal connection be demonstrated between the malfunctioning or improper operation of the instrument and the determination that the blood alcohol level of the accused exceeded the legal limit, and (2) that further evidence be submitted to demonstrate that the blood alcohol level of the accused did not exceed the legal limit — unjustifiably infringe s. 11(d) of the Charter. All the other constitutional challenges in that case are rejected. Since only the first requirement of s. 258(1)(c) survives the Court’s decision in St-Onge Lamoureux, I will address the Amendments only as they stand following that decision.

[15] Although I will not engage in the impossible task of reconciling all the decisions in which the courts have grappled with whether new legislation affects substantive rights, references to a few cases will be helpful. The following statements of La Forest J. in Angus, at pp. 265-66, are particularly relevant to the issue before us:
Normally, rules of procedure do not affect the content or existence of an action or defence (or right, obligation, or whatever else is the subject of the legislation), but only the manner of its enforcement or use. . . .

. . .

Alteration of a “mode” of procedure in the conduct of a defence is a very different thing from the removal of the defence entirely. [Emphasis in original.]
[16] The fact that new legislation has an effect on the content or existence of a defence, as opposed to affecting only the manner in which it is presented, is an indication that substantive rights are affected. I cannot accept the approach adopted by the Court of Appeal in the instant case, according to which legislation that alters the evidentiary content of a defence applies retrospectively (para. 27).

[17] The first question is thus whether, in imposing a new requirement for rebutting the presumptions of accuracy and identity applicable to breathalyzer test results, Parliament has affected the existence or content of a defence. As a result of the Amendments and the decision in St-Onge Lamoureux, the only evidence that can be tendered to raise a reasonable doubt about the reliability of breathalyzer test results is now evidence that the instrument was malfunctioning or was operated improperly. It is clear from s. 258(1)(d.01) that the Carter defence is no longer sufficient on its own to rebut the presumptions of accuracy and identity. The burden on the accused has thus been increased, as he or she can no longer ask the judge to draw an inference of malfunction or improper operation from indirect evidence by raising a Carter defence. Evidence related directly to the instrument itself is now required.

[18] The fact that the Carter defence is no longer sufficient on its own to rebut the presumptions established in s. 258(1)(c) makes it difficult to accept MacPherson J.A.’s opinion that the defence has not been eliminated, neutered or abolished and that it survives in a different form. In fact, this opinion is in sharp contrast with the very words of s. 258(1)(d.01), according to which “evidence tending to show that an approved instrument was malfunctioning or was operated improperly” does not include the evidence that would be tendered in raising the Carter defence. Unlike MacPherson J.A., I must conclude that the Carter defence has been eliminated as an independent means to raise a reasonable doubt about the reliability of breathalyzer test results. This, in my view, indicates that the provisions are not merely procedural; they affect a defence open to an accused and are therefore subject to the presumption against the retrospective application of new legislation. I agree with Mayrand J.A. in R. v. Gervais (1978), 1978 CanLII 2539 (QC CA), 43 C.C.C. (2d) 533 (Que. C.A.), that the right of an accused to rely on a defence is a substantive right and that new legislation has to be interpreted so as not to deprive the accused of a defence that would have been open to him or her at the time of the impugned act (p. 535).

[19] In St-Onge Lamoureux, I conclude that precluding the use of the Carter defence to raise on its own a doubt about the accuracy of breathalyzer test results does not violate s. 7 of the Charter. However, the fact that Parliament could exclude evidence of alcohol consumption does not change the fact that a defence which on its own enabled an accused to avert conviction has been eliminated.

[20] This brings me to my second reason for finding that the Amendments affect substantive rights of the accused. The broad scheme put in place by Parliament is based on presumptions that the results of the breathalyzer analyses are accurate and that they are identical to the blood alcohol level of the accused at the time of the alleged offence. As discussed in St-Onge Lamoureux, at para. 27, these statutory presumptions infringe the constitutionally protected right to be presumed innocent, as they relieve the Crown of the requirement of proving the guilt of the accused beyond a reasonable doubt before he or she need to respond. The legislated means to rebut these presumptions are relevant to the determination of whether the infringement of the right to be presumed innocent is justified under s. 1. This is where the Carter defence comes into play. Under the former legislation, the Carter defence enabled the accused to discharge his or her burden of rebutting the statutory presumptions, which favour the Crown, by relying on an expert opinion that the amount of alcohol he or she consumed is inconsistent with the breathalyzer test results. As a result of the Amendments, this is no longer the case. Instead, the accused must now present direct evidence about the use or operation of the instrument in order to rebut the presumptions.

[21] The possibility for the accused of rebutting the statutory presumptions by means of a Carter defence (under the former legislation) or by adducing evidence related to the instrument (under the Amendments) is determinative of whether the infringement of the right to be presumed innocent is justified. However, the conclusion that the infringement is justified in the context of the new legislation does not alter the fact that constitutional rights are affected. This is a further indication that the new legislation affects substantive rights, since constitutional rights are necessarily substantive. When constitutional rights are affected, the general rule against the retrospective application of legislation should apply.

[22] In addition to the impact on the substantive rights of the accused, there is another reason why the Amendments should not be found to operate retrospectively. As a result of the Amendments, the evidence the accused may present to rebut the presumptions is limited to evidence that the instrument was malfunctioning or was operated improperly. The nature of that evidence is not defined in the Amendments, but it presumably has to relate to the instrument that was used to test the accused and not to the functioning of such instruments generally. This means that the accused may need to have access to information concerning the instrument used in his or her case or to operating records that would enable him or her to determine whether the instrument was functioning properly and was operated correctly. It is difficult to conceive how such an examination could take place months or even years after the tests were conducted. There is no indication that the instruments are isolated after being used in a given case. Parliament has not provided for the preservation of evidence for cases that began before the Amendments came into force.

[23] In St-Onge Lamoureux, one of the arguments put to the Court was that the Amendments violated the s. 7 rights of the accused because the defence required by the new legislation was so difficult to present that it was practically illusory. This argument was rejected on the basis that there are no limits on the evidence the accused can reasonably tender, provided that it relates to the malfunctioning or improper operation of the instrument. However, where, as in the case at bar, the parties did not know at the time of the breathalyzer tests that such a defence would be required, and years elapsed between the tests and the trial, it may be impossible to present evidence to rebut the presumptions.

[24] There are similarities between the situation in the instant case and the one before the Court in R. v. Ali, 1979 CanLII 174 (SCC), [1980] 1 S.C.R. 221. In that case, amendments to the Criminal Code authorized the police to request more than one breath sample and made the taking of two samples a condition of application of the presumptions attached to breathalyzer test results. Because the former provision had not authorized the police to take two samples, prosecutions commenced before the new provision came into force would be frustrated by the new requirement if the amendments were held to apply retrospectively. The Court held that Parliament could not have intended such a result. Both in Ali and in the present case, Parliament added a requirement related to the evidence a party must adduce. In the case at bar, the new requirement is a condition for the rebuttal of the presumption provided for in s. 258(1)(c), whereas in Ali the new requirement was a condition for the application of the presumption.

[25] Ali supports the view that, where the former legislation did not contemplate the gathering of evidence that is required by the new legislation, the new legislation can only be prospective. In the instant case, the accused cannot adduce evidence that he had no reason to gather before the Amendments. This is an additional reason for concluding that the Amendments do not apply to cases that were commenced before the Amendments came into force. I therefore disagree with MacPherson J.A. that the difficulty for an accused of obtaining evidence on the functioning of the instrument used in his or her case after years have gone by is speculative. Rather, I agree with the following comment by Bich J.A. (dissenting) in R. v. Loiseau, 2010 QCCA 1872 (CanLII), at para. 56:
[translation] Because the law makes the requirements for the gathering of evidence more stringent and, due to the state of the law at the time, ensures that the accused will not have sought evidence that would now be indispensable to him to mount a defence, the amended provisions should not apply to this situation.
3. Presumption Against Retrospectivity

. R v Bengy

This case speaks of a presumption against retrospectivity R v Bengy (Ont CA, 2015):
[40] The leading and most recent authority on the presumption against retrospectivity is the Supreme Court decision in R. v. Dineley, 2012 SCC 58 (CanLII), [2012] 3 S.C.R. 272. In Dineley, the court was divided four to three over whether Parliament’s repeal of the “Carter defence” in the drinking and driving context was applicable to – and therefore removed the defence from – defendants who were tried post-amendment, but allegedly committed offences pre-amendment. The court was unanimous on the governing principle, expressed by the majority at para. 10 (and adopted by the dissent at paras. 45-47):
New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively…. However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases.
[41] Applying this principle, the court was divided over whether the amendment was properly characterized as affecting substantive or procedural rights. The majority concluded the amendment affected substantive rights and therefore applied strictly prospectively. Accordingly, the former Carter defence was available to those persons alleged to have committed offences prior to the amendment, even if their trials took place after the amendment. Conversely, the minority concluded the amendment was procedural and therefore retrospectively removed the defence from all persons tried after it came into force.

[42] Deschamps J., writing for the majority, at para. 10., explained the principle that animates the presumption against retrospectivity: “Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional.”

[43] In Carriere, Wakeling J. referred to the policy rationale behind the presumption, at para. 57, as described in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008):
Perhaps the most fundamental tenet of the rule of law is that those who are governed by the law must have knowledge of its rules before acting; otherwise, any compliance with the law on their part is purely accidental. Citizens must have knowledge of the law before acting so that they can adjust their conduct to avoid undesirable consequences and secure desirable ones. To ensure adequate notice, the rules enacted by the legislature must be published and adequately publicized – ideally before commencement but at the latest upon commencement.… Citizens cannot comply with, rely on or take advantage of law unless they know what it is before deciding how they will behave.
. R. v. R.S.

In R. v. R.S. (Ont CA, 2019) the Court of Appeal has this to say about the distinction between retroactive and retrospective statutes:
[24] The distinction between a law that operates retroactively and one that operates retrospectively can be a fine one. Drawing the distinction is made even more difficult by the interchangeable use of the two words in many judgments: Sullivan, at pp. 761-62; see e.g. Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), 1975 CanLII 4 (SCC), [1977] 1 S.C.R. 271, at p. 279.

[25] I use the term “retroactive” in reference to the temporal operation of legislation in a narrow sense. Retroactive laws refer to legislation that deems the law to have been something different than it actually was as of a date that precedes the enactment of the law. Truly retroactive laws are rare and commonly target a specific situation with language aimed at addressing a very specific problem: see e.g. Air Canada v. British Columbia, 1989 CanLII 95 (SCC), [1989] 1 S.C.R. 1161.

[26] Retrospective laws operate only from the date of enactment, but change the legal effects, on a going forward basis, of events that occurred before the enactment. The difference between a retroactive law and a retrospective law is the difference between a law that declares all requests for a preliminary inquiry void as of a date six months before the enactment, and a law that declares requests for a preliminary inquiry made before the enactment enforceable up to the time of the enactment, but not after the enactment: see E. Driedger, “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar. Rev. 264, at pp. 268-76. The Crown correctly characterizes the scope of the amendments as retrospective and not retroactive.
4. Temporal Cultural Standards Applicable

. Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee

In Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee (Ont CA, 2020) the Court of Appeal addressed an unusual case dealing with the history and antiquated statutes of Mount Pleasant Cemetery in Toronto. One statutory interpretation issue was whether interpretation was according to current standards or to standards at the time that the statute was made:
[142] Section 63 of the Legislation Act, 2006 provides that the law is always speaking, as did its predecessor, the 1867 Interpretation Act, in s. 6(1). Citing this provision in the 1970 version of the Ontario Interpretation Act, Estey J.A. (as he then was) in Cash v. George Dundas Realty Ltd., 1973 CanLII 40 (ON CA), 40 D.L.R. (3d) 31 (Ont. C.A.), aff’d 1975 CanLII 35 (SCC), [1976] 2 S.C.R. 796, succinctly captured this point: “[w]e are now concerned only with applying the statute according to its plain meaning in the light of the current practices and standards of the community”: at p. 38. More recently, as Sharpe J.A., writing for this court in Hilson v. 1336365 Alberta Ltd., 2019 ONCA 1000, 148 O.R. (3d) 609, stated at para. 28:
Fourth, we do not accept the submission that the appellants’ contention is supported by the principles of statutory interpretation. The argument that when interpreting the word “instrument” we should rigidly adhere to the specific problem that motivated its enactment would be contrary to the Interpretation Act, R.S.O. 1990, c. I.11, s. 4: “The law shall be considered as always speaking and, where a matter or thing is expressed in the present tense, it is to be applied to the circumstances as they arise, so that effect may be given to each Act and every part of it according to its true intent and meaning.” This direction should be read together with s. 10 that all statutes “shall be deemed to be remedial ... and shall accordingly 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”. See also Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), at pp. 120-1. Unless the language of an enactment compels us to do so, we should avoid interpreting legislation in a way that produces impractical and unjust results.
[143] This issue was also canvassed by this court in Ackland v. Yonge-Esplanade Enterprises Ltd. (1992), 1992 CanLII 7515 (ON CA), 10 O.R. (3d) 97 (C.A.). There the court asked whether the correct presumptive approach to statutory interpretation is an historical one or an updating or ambulatory one. Put differently, the court considered whether an Act should be interpreted as a fixed-time Act or an on-going Act. In that case, Morden A.C.J.O. quoted the following excerpt from Sir Rupert Cross, Statutory Interpretation, 2nd ed. (London: Butterworths, 1987), at p. 50:
But the proposition that an Act is always speaking is often taken to mean that a statutory provision has to be considered first and foremost as a norm of the current legal system, whence it takes its force, rather than just as a product of an historically defined Parliamentary assembly. It has a legal existence independently of the historical contingencies of its promulgation, and accordingly should be interpreted in the light of its place within the system of legal norms currently in force. Such an approach takes account of the viewpoint of the ordinary legal interpreter of today, who expects to apply ordinary current meaning to legal texts, rather than to embark on research into linguistic, cultural and political history, unless he is specifically put on notice that the latter approach is required.
[144] Similarly, Côté states at p. 226:
But merely because the meaning of legislation at the time of its enactment must be respected in no way suggests that the statute’s effect is confined to material or social facts or events then existing. It is necessary to distinguish the meaning of a term from the things that may be included in its ambit.

An enactment dated January 15, 1980 dealing with ‘automobiles’ will obviously apply to cars built in 1981: the law ‘is ever commanding’; ‘and whatever be the sense of the verb or verbs contained in a provision, such provision shall be deemed to be in force at all times and under all circumstances to which it may apply’. The guideline favouring the common meaning at the time of adoption does not mean ‘…that all terms in all statutes must always be confined to their original meanings. Broad statutory categories are often held to include things unknown when the statute was enacted.’
5. Temporal Evolution of Statutes

. Canada (National Revenue) v. Al Saunders Contracting & Consulting Inc.

In Canada (National Revenue) v. Al Saunders Contracting & Consulting Inc. (Fed CA, 2020) the Federal Court of Appeal stated this interpretive principle in federal tax law:
[26] The Supreme Court has held that the evolution of legislation is part of the entire context in which statutes are to be read (Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70, [2005] 3 S.C.R. 425, at paragraph 28).

[27] Prior to 1991, part (vii) of paragraph 6(1)(b) did not refer to "“reasonable allowances for travel expenses”". Instead, it provided an exemption from inclusion in the calculation of income for "“allowances (not in excess of reasonable amounts) for travel expenses”" (Income Tax Act, R.S., 1952, c. 148, as amended by R.S.C. 1985, 5th Supp., c. 1, s. 6).

[28] The Technical Note issued by the Department of Finance in May 1991 to explain the amendments made then to the Act, including amendments to subparagraphs 6(1)(b)(x) and (xi) relating to allowances for the use of a motor vehicle, stated that:
These [sub]paragraphs are amended to provide that reasonable allowances in respect of travelling expenses and motor vehicle expenses will be excluded in computing the income of an individual from an office or employment. Thus allowances that are not reasonable, rather than only those in excess of a reasonable allowance, may be included in income. In these circumstances, the taxpayer may be entitled to a deduction with respect to travelling expenses under paragraph 8(1)(f) or (h).

(underlining added)
[29] The Technical Notes are a relevant, extrinsic interpretive aid that adds context to the interpretation of subparagraph 6(1)(b)(vii). It reflects a policy decision made by Parliament that when an allowance is paid in respect of a travelling expense that is not reasonable, all of the allowance is to be included in the computation of income.



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