2011 NBCA 81, 2011 NBCA 81

COUR D’APPEL DU NOUVEAU-BRUNSWICK 28-11-CA CARTER BROTHERS LTD. APPELLANT CARTER BROTHERS LTD. APPELANTE - and - - et - THE REGISTRAR OF MOTOR VEHICLES FOR THE PROVINCE OF NEW BRUNSWICK RESPONDENT REGISTRAIRE DES VÉHICLES À MOTEUR DE LA PROVINCE DU NOUVEAU-BRUNSWICK INTIMÉ Carter Brothers Ltd. v. The Registrar of Motor Vehicles for the Province of New Brunswick, 2011 NBCA 81 Carter Brothers Ltd. c.

Registraire des véhicules à moteur de la Province du Nouveau-Brunswick, 2011 NBCA 81 CORAM: The Honourable Justice Robertson The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: February 4, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 4 février 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 41 Décision frappée d’appel : 2011 NBBR 41 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: June 21, 2011 Appel entendu : Le 21 juin 2011 Judgment rendered: September 22, 2011 Jugement rendu : Le 22 septembre 2011

Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : L’honorable juge Robertson Concurred in by: The Honourable Justice Bell The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Bell L’honorable juge Green Counsel at hearing: For the appellant: Chantal A. Thibodeau For the respondent: Michael L. Hynes Avocats à l’audience : Pour l’appelante : Chantal A. Thibodeau Pour l’intimé : Michael L. Hynes THE COURT The appeal is allowed and the decision of the application judge set aside.

The application for judicial review is allowed and the decision of the respondent, Registrar of Motor Vehicles, is set aside on the basis that the appellant’s “boom trucks” qualify as special mobile equipment within the meaning of s. 1 of the Motor Vehicle Act . The appellant is entitled to costs of $3,500 on the application and $3,500 on the appeal. LA COUR L’appel est accueilli et la décision du juge saisi de la requête est annulée.

La requête en révision judiciaire est accueillie et la décision de l’intimé, le registraire des véhicules à moteur, est annulée au motif que les « camions à flèche » de l’appelante constituent du matériel mobile spécial au sens de l’art. 1 de la Loi sur les véhicules à moteur . L’appelante a droit aux dépens qui sont fixés à 3 500 $ pour la requête et à 3 500 $ pour l’appel. The judgment of the Court was delivered by ROBERTSON, J.A. [ 1 ] This appeal involves the

interpretation of the Motor Vehicle Act , R.S.N.B. 1973, c. M-17, and its General Regulation 83-42. The respondent, the Registrar of Motor Vehicles, concluded the appellant’s 26 “boom trucks” do not qualify as “special mobile equipment” within the meaning of the legislation and, therefore, the appellant, Carter Brothers Ltd., was not entitled to registration plates bearing the designation “M”. Instead, it was directed to return the M plates and obtain ones bearing the “L” designation. The cost differential between the two designations is considerable.

Depending on the weight of the vehicle, the registration cost of an L plate ranges generally from a low of $700 to a high of $1,200. The cost of an M plate is just $70. In short, after applying for and obtaining M plates for nearly 20 years, Carter Brothers was faced with the prospect of paying between $16,000 and $29,000 more in annual registration fees. In response, Carter Brothers sought judicial review of the Registrar’s interpretative decision. The application judge, in his decision cited at 2011 NBQB 041 , held the Registrar’s decision was owed deference and that it met the standard of reasonableness.

While other issues were raised and dealt with in the Court of Queen’s Bench, we are looking at only the interpretative issue.

[ 2 ] This appeal highlights several realities. First, the jurisprudence of this Court is clear. The legal

interpretation which a government official (elected or non-elected) places on legislation is owed no deference. Second, nothing that was decided in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, undermines that reality. Third, this is a case in which there is an apparent discrepancy between a statutory provision and a regulation. In short, the concept of “special mobile equipment” found in s. 7(6) of the General Regulation does not mirror the definition found in s. 1 of the Motor Vehicle Act . Fourth, the law is clear: a statutory definition applies to regulations made under that statute.

Hence, unless the apparent conflict can be resolved according to interpretative principles, the statutory definition must prevail. It is not the prerogative of the Lieutenant-Governor in Council to rewrite legislation adopted by the Legislature. Fifth, the appellant’s

interpretation is aided by the residual presumption which favours taxpayers. The presumption comes into play when the conventional principles of statutory

interpretation are unable to resolve an ambiguity. Today’s affirmation of this residual presumption should not be lost in future cases where the Attorney General is called upon to defend the government’s

interpretation of fiscal legislation. Within this adumbrated context, I conclude the appeal should be allowed with costs in this Court and in the Court below. [ 3 ] The underlying facts of this case are not complicated. Carter Brothers owns 26 vehicles commonly known as “boom trucks”. They are used for the installation and repairing of telephone and power lines. It is common ground the vehicles are not used “primarily” for the transportation of people or property.

As expected, each boom truck is equipped with an extension device, to which is attached a basket type of platform in which a worker can be hoisted to the required height. The boom is permanently attached to the truck and there is some evidence to support the proposition that the boom’s power source is the truck’s engine. These vehicles travel the public highways to reach a worksite.

They are either parked off the highway entirely or contiguous thereto in cases where the telephone or power lines are adjacent to a “highway”, which is defined under s.1 of the Motor Vehicle Act to include, for example, “street[s], road[s], lane[s] and alley[s]” used by the general public. [ 4 ] On April 30, 2009, the driver of one of Carter Brothers’ boom trucks was ticketed for not having the proper registration plate. From that date until June 26, 2009, some of its other drivers were so ticketed. Subsequently, all charges were withdrawn. Thereafter, the parties began exchanging correspondence.

Two letters are relevant to the disposition of this case. On June 30, 2010, the Registrar wrote to Carter Brothers advising as to the basis on which M plates are issued. The Registrar stated: The “M” plate is used to register trucks, fixed machinery vehicles that cannot carry a load and for vehicles that do not tow a load.

Since your vehicle does not meet these criteria, you are directed to surrender your current plates to the nearest SNB office and have the vehicle properly registered. [ 5 ] Following the issuance of the Registrar’s letter, John Carter, the President of Carter Brothers Inc., met with the Assistant Deputy Minister of the Safety Services Division of the Department of Public Safety. The ADM subsequently wrote to Mr. Carter on July 22, 2010, explaining why the boom trucks do not qualify as special mobile equipment.

The essential parts of the ADM’s letter read as follows: I have reviewed the Motor Vehicle Act and Regulation 83-42, and am satisfied that the eligibility of a vehicle for registration as “special mobile equipment”, with an “M plate” and at an annual fee of $70, is governed by the definition of “special mobile equipment” in

section one of the Act and by subsection 7(6) of the Regulation. It is clear from a reading of these two provisions that, for a truck to be eligible, it must meet the following criteria:

(1) The truck cannot and does not carry a load.

(2) It is used only incidentally on the highways.

(3) It is used solely to carry a power source for certain heavy equipment.

(4) The power source or the heavy equipment is permanently affixed to the truck. The Registrar is comfortable with a flexible approach to these criteria where there is room for

interpretation. The Registrar accepts that the requirement that a truck be only “incidentally operated or moved over the highways” is subjective enough that it is difficult to apply in practice. We will cease applying this criterion, effective immediately. In due course, we will recommend legislative amendments to bring greater clarity. Also, as the Regulation allows for an open list of heavy equipment (“well drilling machinery, wood cutting, threshing or for like purposes”), the Registrar is flexible about the types of heavy machinery that qualify. If it is used for any purpose like the purpose for

[sic] those listed, it will be acceptable, as long as the other criteria are satisfied. That leaves three clear and objective criteria:

(1) The truck cannot and does not carry a load.

(2) The truck is used solely to carry a power source for certain heavy equipment.

(3) The power source or the heavy equipment is permanently affixed to the truck. [6] In the final paragraphs of the July 22, 2010 letter, the ADM informs Mr. Carter of the right to seek judicialreview of the Registrar’s decision, which I interpret to mean the right to seek review of the Registrar’s letter of June 30, 2010. But thisleads one to ask whether the ADM’s letter offers the true rationale for the government’s insistence that the boom trucks in question donot qualify as special mobile equipment under the Motor Vehicle Act.

Regrettably, standing by itself, the Registrar’s letter is simply anoracular pronouncement which is at variance with the ADM’s explanation as to why the boom trucks do not qualify for an M plate. Iwould also note that the Registrar’s decision does not reflect the exercise of a relative expertise.

The conclusion that the special mobileequipment designation applies only to trucks that neither carry nor tow a load amounts to a declaration which is not explained, havingregard to the criteria laid down in s. 1 of the Motor Vehicle Act. [7] If this were truly a deference case, we would have to deal with another issue: the sufficiency of the Registrar’sreasons for decision as a breach of the fairness duty. The appellant’s argument is that his reasons do not allow for meaningful judicialreview.

That issue could be avoided altogether provided the reviewing court is prepared to treat the ADM’s letter as the true reasons forthe Registrar’s decision. As to the sufficiency of an adjudicative tribunal’s reasons see generally Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL); New Brunswick (AttorneyGeneral) v. Pembridge Insurance Co., 2011 NBCA 2, 368 N.B.R. (2d) 134 and New Brunswick (Attorney General) v.

Dominion ofCanada General Insurance Co., 2010 NBCA 82, 366 N.B.R. (2d) 105. [8] Assuming that the law would permit the ADM’s letter to be treated as the Registrar’s reasons for decision andassuming that the ADM’s explanation is subject to the deferential review standard of reasonableness, we would be faced with yet anotherissue.

The fact that the ADM was prepared to ignore a statutory criterion (“incidental” use of vehicles on highways) because of itsinherent ambiguity may make practical sense to some, but the conscious decision to ignore a legislated criterion undermines anyargument that the reasons offered pass the deferential standard of reasonableness. But this is not a case requiring deference to agovernment decision-maker. Let me explain. [9] On no less than two previous occasions, this Court has concluded that a Minister’s

interpretation of his or herenabling statute is owed no deference. Correctness is the proper review standard: O'Dell v. New Brunswick (Ministry of the Environmentand Local Government), 2005 NBCA 58, 286 N.B.R. (2d) 115 and Greenisle Environmental Inc. v. New Brunswick (Minister ofEnvironment and Local Government), 2007 NBCA 9, 311 N.B.R. (2d) 161. This is not to suggest that deference will not be accorded todecisions involving the exercise of Ministerial discretion as reflected in the Supreme Court’s decision in Baker.

All these principles areencapsulated in the following passage taken from Greenisle: In brief, this is not a case where the Minister was being asked to render a decision based on the exercise of a discretionary powerinvolving the weighing of several factors. This is a case where the Minister has expressed a legal opinion as to the meaning of a term thatis found in legislation. I hasten to add that if we were to accept the argument that deference is generally owed to a Minister'sinterpretation of legislation, courts would be effectively deferring to the interpretative views of government counsel.

It is true that the lawrequires that deference be accorded to the interpretative decisions of expert tribunals whose decisions are insulated by full privativeclauses, so long as the interpretative questions do not raise constitutional issues and so long as the issue in question is one over which thetribunal possesses a relative expertise. But this is as far as the law goes. We return to the basic and fundamental premise that the superiorcourts are entrusted with the responsibility and obligation of interpreting legislation, not the executive branch of government: see Crevierv.

Quebec (Attorney General), (SCC), [1981] 2 S.C.R. 220, [1981] S.C.J. No. 80 (QL). [para. 19] [10] It follows logically that if no deference is owed to a Minister’s

interpretation of his or her home statute, nodeference is owed to an interpretative decision rendered by a non-elected government official who, in theory, reports to or is responsibleto the Minister. Hence, no deference may be accorded to the interpretative decision of either the Registrar of Motor Vehicles or the

ADM. In short, the principles outlined above apply equally to elected and non-elected members of government. Regrettably, the decisions of our Court were not cited to the application judge. However, when the jurisprudence was brought to the parties’ attention, counsel for the Attorney General respectfully refused to concede the standard of review issue because the New Brunswick jurisprudence was decided prior to the release of the Supreme Court’s decision in Dunsmuir .

In particular, counsel seized upon paragraphs 51 and 53 of that decision to emphasize that in cases involving questions of mixed law and fact deference will normally be accorded to the decision of an adjudicative tribunal that possesses a relative expertise. The short response to this argument is that we are not dealing with an adjudicative tribunal whose decisions are, for example, protected by a privative clause, as was true in Dunsmuir . Nor are we dealing with the exercise of an administrative discretion, as was true in Baker .

What we are dealing with is the interpretative opinion rendered by government officials during the course of the administration of a legislative enactment. Even if both men were legally trained, this Court does not accord deference to the opinions of lawyers working within the office of the Attorney General or in adjacent Departments. Hence, the fact that the ultimate decision regarding the right to “M” plates requires the application of findings of fact to the

interpretation of the Motor Vehicle Act and its General Regulation is inconsequential. [ 11 ] Invariably, the task of statutory

interpretation involves a contextual analysis. The word “vehicle” is broadly defined in s. 1 of the Motor Vehicle Act to mean “every device in, upon or by which any person or property may be transported or drawn upon a highway excepting devices moved by human power”. The term “motor vehicle” is defined to mean “every vehicle that is self propelled”, except for farm tractors and electric trolleys. The word “truck” is defined to mean “every motor vehicle designed, used or maintained primarily for the transportation of property”. Next, we turn to

Part II of the Act which deals with the registration of “vehicles”. Section 17(1) provides that, except as provided by the Act or regulation, no person is to operate and no owner shall permit a vehicle to be operated on a highway unless that vehicle is registered. Section 21(1) provides that every motor vehicle, trailer, semi-trailer, pole trailer and all special mobile equipment operated on a highway shall be registered under

Part II. However, s. 21(1)(

c) makes an exception for any special mobile equipment specifically excepted by the Minister of Public Safety. Neither the Act nor the regulations identify any exception. Hence, all special mobile equipment must be registered; that is to say, the owner must pay the required fee to obtain registration plates. [ 12 ] The Act makes only two other references to the term “special mobile equipment”. The first is found in the definition section.

Section 1 defines “special mobile equipment” as follows: “special mobile equipment” means every vehicle not designed or used primarily for the transportation of persons or property and incidentally operated or moved over the highways, including road construction or maintenance machinery, ditch digging apparatus, well- boring apparatus, concrete mixers and any other vehicle of the same general class. [ 13 ] Note that the term “special mobile equipment” is defined to mean every vehicle.

Therefore, the term must include motor vehicles which are defined as vehicles that are self propelled. [ 14 ] The second mention of the term “special mobile equipment” is found in the regulation making power of the Lieutenant-Governor in Council, which is found in

Part I of the Motor Vehicle Act .

Section 5.1 authorizes the Lieutenant-Governor to adopt by regulation classes of motor vehicles and special mobile equipment for registration purposes and to specify the conditions governing the classification of such. I pause here to emphasize that s. 5.1 expressly authorizes the Lieutenant-Governor to establish classifications for special mobile equipment by imposing different conditions. Finally, it is s. 16 which authorizes the Lieutenant- Governor to adopt regulations which prescribe fees not otherwise provided for under the Act .

As it should happen, the registration fees for vehicles are not found within the Act but, as one would expect, prescribed under the General Regulation 83-42. [ 15 ] The next stage in the contextual analysis is to examine the regulations adopted under the Motor Vehicle Act . Only the General Regulation 83-42 is relevant to the issue at hand, as it is the only regulation which refers to special mobile equipment. The General Regulation, amongst other things, sets out the “fees” for registration of the various types of vehicles covered by the Act .

The only provision of the General Regulation which makes reference to special mobile equipment is s. 7(6). The

section prescribes a fee of $70. However, s. 7(6) does not simply state that the annual registration fee for special mobile equipment is $70. The provision introduces criteria not found in the statutory definition.

Section 7(6) of the General Regulation reads as follows: For an item of special mobile equipment used solely for the purpose of transporting and developing power for well drilling machinery, wood cutting, threshing or for like purposes, and to which some part of the equipment is permanently attached, the annual registration fee shall be $70.00. [ 16 ] What is striking about s. 7(6) of the General Regulation is that its wording departs substantially from the definition of “special mobile equipment” set out in s. 1 of the Motor Vehicle Act . Recall that the definition

section of the Act speaks of special mobile equipment in terms of every vehicle that: (1) is not designed or used primarily for the transportation of persons and property; and (2) is only incidentally operated or moved over highways. However, the definition goes on to identify examples of vehicles

falling within the “general class” of special mobile equipment: road construction or maintenance machinery, ditch digging apparatus,well-boring apparatus and concrete mixers. By contrast, s. 7(6) of the General Regulation appears to limit or narrow the scope of thestatutory definition by introducing other criteria. First, the special mobile equipment (i.e., motor vehicle) must be used solely for thepurpose of transporting and developing power for equipment such as that used in well drilling, wood cutting or threshing.

Second, somepart of the mobile equipment must be permanently attached. [17] At first blush, there is no obvious correlation between the definition of special mobile equipment found in s. 1of the Motor Vehicle Act and the concept of special mobile equipment as used in s. 7(6) of the General Regulation. No one would quibblewith the understanding that the Lieutenant-Governor in Council has no authority to adopt a regulation which has the effect of amending adefinition found within the statute, by either narrowing or expanding the scope of the statutory definition.

This understanding isconsistent with the common law rule that statutory

definitions apply to regulations made under the statute as well as to the statute itself:see generally Ruth Sullivan, Statutory

Interpretation (Concord, Ont.: Irwin Law, 1997) at 82. [18] One is left to ponder why the Lieutenant-Governor did not simply draft s. 7(6) of the General Regulation insimple terms, such as: “The registration fee for special mobile equipment is $70”. Certainly it was open to the Lieutenant-Governor inCouncil to create two or more sub-classifications for special mobile equipment by imposing different conditions solely for the purpose ofsetting differential registration fees.

For example, one sub-class of special mobile equipment could have provided for an annualregistration fee of $70, while the fee for another sub-class could have been fixed at $100. While it would have been permissible for theLieutenant-Governor in Council to establish sub-classifications for special mobile equipment and to adopt different conditions or criteriato effect that purpose, at the end of the day each sub-classification would have to fall within the statutory definition. But this is not whathappened. The General Regulation sets out only one classification for special mobile equipment.

Hence, we are left with an apparentinconsistency between the statutory definition and the concept of special mobile equipment set out in the General Regulation. [19] There are at least four ways to tackle the apparent ambiguity identified in the preceding paragraph. Oneapproach is to read s. 7(6) of the General Regulation as applying only to a sub-classification of special mobile equipment: a subset that isobviously narrower than the concept found in the definition of “special mobile equipment”. The problem with this approach is that onlythe subset would be subject to a registration fee of $70.

All other special mobile equipment would be immune from the annualregistration fee. Surely, neither the Legislature nor the Lieutenant-Governor in Council could have intended such a result. The secondapproach is to maintain that s. 7(6) of the General Regulation is ultra vires the Lieutenant-Governor in Council by arguing theLieutenant-Governor has no authority to impose the criteria that: (1) the vehicle be used solely for purposes of “transporting anddeveloping” a power source for certain heavy equipment; and (2) the equipment be “permanently attached”.

The third approach is toavoid any apparent inconsistency by attempting to read s. 1 of the Motor Vehicle Act and s. 7(6) of the General Regulation in acomplementary fashion. To that end, one has to maintain that the additional criteria set out in s. 7(6) are also applicable, but implicitly so,when it comes to the statutory definition of “special mobile equipment”. This approach would require us to identify the common links orshared characteristics between the types of special mobile equipment expressly identified in the statutory definition and the equipmentidentified in the regulation.

For example, what are the shared characteristics of a “concrete mixer” and “well drilling machinery”? Thefourth approach is the simplest of all. Ignore the concept of special mobile equipment set out in the regulation and focus on the questionof whether the boom trucks meet the criteria set out in the statutory definition. If the boom trucks qualify under that provision, nothingthat is set out in the regulation should be able to undermine that conclusion. [20] The first criterion set out in the definition

section of the Motor Vehicle Act focuses on whether the trucks aredesigned or used primarily for the transportation of persons and property. The answer is clearly “no”. There is no dispute over thisconclusion. The second criterion is whether the trucks are only incidentally operated or moved over highways. The ADM admitted in hisletter to Carter Brothers that, as a practical matter, this criterion is difficult to apply. I agree, but this does not mean that the criterion canbe disregarded altogether.

While the Registrar’s letter makes no reference to this criterion, he took a different approach when the mattercame on for judicial review. In his affidavit, he states that he considered whether the boom trucks were being used only incidentally onhighways. While Carter Brothers objected to this portion of the affidavit on the ground of “bootstrapping”, the Registrar’s comments areworthy of consideration. At paragraphs 8 to 10 of his affidavit, the Registrar explains that the exception accorded to special mobileequipment was intended to apply only to vehicles that use the highways “incidentally”.

He then goes on to explain that such vehicles aresaid to be mostly stationary or parked at worksites for long periods or along other transportation corridors such as power line easements. [21] In my respectful view, the Registrar’s argument with respect to incidental use of highways is not persuasive forthe following reason. The statutory definition of special mobile equipment expressly refers to “concrete mixers” and “ditch diggingapparatus”. Relying on common sense, how can one reasonably maintain that a concrete mixer is “mostly stationary” and hence expectedto remain at work sites for extended periods?

On the other hand, the use of boom trucks and ditch digging apparatus do share a trait. Bothmay be parked contiguous to a highway as opposed to being parked on private or other public lands. I say this because ditches are aslikely to be contiguous to highways as are telephone and power lines. Based on these shared characteristics, the boom trucks seem to fallwithin the same general class as concrete mixers and ditch digging apparatus. Hence, the trucks should qualify as special mobileequipment under the statutory definition.

In reaching this conclusion I am mindful of the residual presumption which tells us that thebenefit of any doubt must be resolved in favour of the taxpayer. Admittedly, the presumption only comes into play when a “reasonabledoubt” is not resolved by the ordinary rules of

interpretation. As the Supreme Court held in Québec (Communauté urbaine) v. Corp.Notre-Dame de Bon-Secours, (SCC), [1994] 3 S.C.R. 3, [1994] S.C.J. No. 78 (QL): “Only a reasonable doubt, notresolved by the ordinary rules of

interpretation, will be settled by recourse to the residual presumption in favour of the taxpayer” (para

20). On this point, see generally, Ruth Sullivan, Sullivan on the Construction of Statutes , 5 th ed. (Markham, Ont.: LexisNexis, 2008) at 527 et seq. [ 22 ] This leads us to consider the concept of special mobile equipment as set out in s. 7(6) of the General Regulation. That

section states that the equipment ( i.e ., vehicle) must be used solely for the purpose of transporting and developing power for well drilling, wood cutting, threshing and other “like purposes”. This reformulation of the concept of special mobile equipment forces us to identify the shared characteristic between, for example, a concrete mixer and well drilling machinery. The only shared trait that I could think of is tied to the unproven assumption that all of these vehicles depend on the vehicle’s motor to power the equipment which is permanently attached to the vehicle.

If my intuitive observation were correct, there would no longer be an apparent inconsistency between the statutory definition and the regulation. On the other hand, were the assumption challenged on the ground that it lacks persuasiveness or remains unsupported by the record on judicial review, then I would be prepared to hold that s. 7(6) of the General Regulation is inconsistent with the definition of special mobile equipment found in s. 1 of the Motor Vehicle Act and, therefore, the statutory definition prevails.

Finally, if there is any doubt as to how the apparent inconsistency between the definition of “special mobile equipment” found in s. 1 of the Act and s. 7(6) of the General Regulation is to be resolved and if there is any doubt as to whether the boom trucks qualify as special mobile equipment within the meaning of the statutory definition, I am prepared to invoke the residual presumption which favours taxpayers. [ 23 ] I would allow the appeal, set aside the judgment rendered in the Court of Queen’s Bench and grant the application setting aside the interpretative decision of the Registrar of Motor Vehicles.

In my respectful view, the appellant’s boom trucks qualify as special mobile equipment within the meaning of s. 1 of the Motor Vehicle Act . The appellant is entitled to costs of $3,500 on the judicial review application and an equal amount on the appeal. ____________________________________ J.T. ROBERTSON, J.A. WE CONCUR: ____________________________________ B. RICHARD BELL, J.A. _____________________________________ BRADLEY V. GREEN, J.A.