GOVERNMENT OF YUKON as represented by the Minister of the Department of Energy, Mines v. Resources, 2022 YKSC 2

SUPREME COURT OF YUKON Citation: Yukon (Government of) v Yukon Zinc Corporation , 2022 YKSC 2 Date: 20220121 S.C. No. 19-A0067 Registry: Whitehorse BETWEEN: GOVERNMENT OF YUKON as represented by the Minister of the Department of Energy, Mines and Resources PETITIONER AND YUKON ZINC CORPORATION RESPONDENT Before Chief Justice S.M. Duncan Counsel for the Petitioner John T. Porter and Kimberly Sova (by video) No one appearing Yukon Zinc Corporation Counsel for Welichem Research General Partnership H. Lance Williams and Forrest Finn (by video) Counsel for PricewaterhouseCoopers Inc.

Tevia Jeffries and Emma Newbery (by video) REASONS FOR DECISION Introduction [ 1 ] The court-appointed Receiver, PricewaterhouseCoopers Inc., brings two applications: one for Orders approving the sale of certain mineral claims and related assets of Yukon Zinc Corporation (“Yukon Zinc”) to Almaden Minerals Ltd. (“Almaden”) and for the termination of the sale and investment solicitation plan (the “SISP”), and the second for an Order sealing the Receiver’s Confidential Supplemental Eighth Report to the Court, with appendices, currently unfiled. [ 2 ] The Government of Yukon supports these applications.

The applications are unopposed or subject to no position taken by Welichem Research General Partnership (“Welichem”) a secured creditor of Yukon Zinc and lessor of items comprising substantially all of the infrastructure, tools, vehicles and equipment at the Wolverine Mine (the “Mine”). No other interested party appeared on the application or made submissions. [ 3 ] For the following reasons, I will grant the Orders requested, subject to certain conditions as set out below.

Background [ 4 ] These applications arise in the context of the ongoing receivership of all the assets, undertakings and property of Yukon Zinc. Its principal asset is the Mine, a zinc-silver-lead mine located 282 km northeast of Whitehorse, Yukon. It holds 2,945 quartz mineral claims, a quartz mining license issued under the Quartz Mining Act , SY 2003, c.14 , and a water licence issued under the Waters Act , SY

2003, c.19 . Yukon Zinc carried out exploration and development activities between 2008 and 2011. The Mine began production in March 2012. In January 2015, the Mine ceased operating because of financial difficulties and was put into care and maintenance. Despite a successful restructuring in October 2015, Yukon Zinc was unable to obtain additional funds to operate the Mine and it continued in care and maintenance.

In 2017, the underground portion of the Mine flooded and contaminated water was diverted to the tailings storage facility, creating an increased risk of the release of untreated water into the environment. In May 2018, the Yukon government requested from Yukon Zinc an increase in reclamation security from $10,588,966 to $35,548,650 to enable it to address the deteriorating condition of the Mine. Yukon Zinc never provided this increased amount. In September 2019, the Yukon government’s petition for the appointment of the Receiver of Yukon Zinc’s property and assets was granted by this Court.

By October 2019, Yukon Zinc had not filed a proposal in the bankruptcy matter, commenced in British Columbia, and Yukon Zinc was deemed to have made an assignment into bankruptcy. PricewaterhouseCoopers Inc. was appointed the trustee in bankruptcy. [ 5 ] Pursuant to s. 243(1) of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 as amended (the “ BIA ”), the Receiver became responsible for the care and maintenance of the Mine. It developed the SISP that proposed the evaluation of bids for the assets and property of Yukon Zinc on various factors.

The SISP was approved by the Court on May 26, 2020 but was stayed pending the outcome of an appeal by Welichem. The Court’s approval was confirmed on appeal. [ 6 ] The sale process began in April 2021. The Receiver contacted 559 potential bidders, advertised the SISP on-line and through media in British Columbia and Yukon and encouraged other stakeholders such as Yukon government and the Kaska Nation to provide additional contacts. Eighteen potential bidders signed non-disclosure agreements and were given access to the data room. By June 2021 several entities submitted non-binding expressions of interest.

Throughout the summer of 2021, the Receiver held multiple calls with each of these potential bidders to discuss their plans and ensure the Receiver understood them, to explain and clarify the SISP evaluation criteria, and to support the bidders’ due diligence work, including providing explanations of the regulatory requirements. The Receiver also discussed the progress of the SISP regularly with Yukon government and the Kaska Nation. The binding bid deadline was extended and by July the Receiver had received several binding bids. The Receiver began to evaluate these bids.

By September 2021, however, some bidders withdrew from the process for various reasons. These withdrawals were confirmed in writing by the Receiver (the “Removal Letters”). [ 7 ] On completion of the evaluation of the remaining bids, the Receiver concluded that no bid could result in a viable sale of substantially all of Yukon Zinc’s assets. The Receiver advised the relevant stakeholders by letter, after consultation with Yukon government, that the sale process would be terminated (the “Termination Letters”).

The Receiver also determined at that time that the preferred approach was to transfer the care and maintenance to the Yukon government. [ 8 ] In June 2021, the Receiver received a non-binding expression of interest and subsequently a binding bid from Almaden for a small portion of the assets of Yukon Zinc, the Logan interests. Almaden had entered into a joint venture agreement with Yukon Zinc (then called Expatriate Resources Ltd.) in 2005. This agreement led to the forming of a contractual joint venture to explore and develop the Logan interests. No such activity was ever commenced.

The Logan interests consist of 156 mineral claims located approximately 100 km south of the Mine. Under the joint venture, Yukon Zinc had an interest of 60% and Almaden 40%.

Almaden offered to purchase the Yukon Zinc 60% interest. [ 9 ] The Receiver believes the Almaden bid could be a viable sale of the Logan interests and has entered into a purchase and sale agreement with Almaden for this purpose, subject to court approval. [ 10 ] The Receiver has submitted copies of the non-binding expressions of interest, binding bids, Removal letters, Termination letters, the Almaden bid, and the Almaden purchase agreement as attachments to the Receiver’s Confidential Supplemental Eighth Report.

All of these documents along with the report are considered to contain sensitive commercial information and the Receiver seeks a sealing order over them. Approval of Sale to Almaden [ 11 ] Subsections 3(

k) and (

l) of the Receiver’s powers set out in the Order dated September 13, 2019 provide the Receiver with express power and authority to market any or all of the Yukon Zinc assets, undertakings or property, including advertising and soliciting offers for all or part of the property, negotiating appropriate terms and conditions, as well as authority to sell, convey, transfer, lease or assign the property with approval of this Court if the transaction exceeds $150,000. [ 12 ] The SISP sets out at s. 22 the evaluation criteria for qualified purchase bids. They are: (

a) Price; (

b) Structural complexity of the proposed transaction; (

c) Nature and sufficiency of funding for the proposed transaction; (

d) Probability of closing the proposed transaction and any relevant risks thereto, including nature of any remaining conditions and due diligence requirements; (

e) Whether the proposed transaction leaves any of the YZC [Yukon Zinc Corporation] Assets within the receivership;

(

f) Impact on former employees of YZC; (

g) Bidder’s financial strength, technical and environmental expertise and relevant experience to carry out work required to maintainregulatory compliance at the Wolverine Mine after closing of the proposed transaction; (

h) Bidder’s historical environmental safety record, operational experience with undertakings of similar nature and/or scale andrecord of successful restart of mines out of care and maintenance; (

i) Strength of a bidder’s proposal for posted required Reclamation Security as required by the DEMR [Department of Energy,Mines and Resources] and any other security required by any other applicable regulator; (

j) Qualified Bidder’s willingness and demonstrated ability to obtain and maintain any necessary regulatory approval inconnection with ownership and operation or case and maintenance of the Wolverine Mine, including from but not limited to the WaterBoard and the DEMR; (

k) Benefits that may accrue to Yukon residents and businesses and the affected Kaska Nations of Ross River Dena Council, LiardFirst Nation, Kwadacha Nation and Dease River First Nation. [13] The SISP also requires the Receiver to report to the Court on the outcome of the solicitation process, including whether it intendsto proceed with any one or more of the qualified purchase bids. The applicable statutory obligations on the Receiver are set out in s.247(

a) and (

b) of the BIA: to act honestly and in good faith, and to deal with the property of the debtor in a commercially reasonablemanner. [14] The principles to be applied by a court in determining whether to approve a proposed sale by a receiver are set out in the leadingcase of Royal Bank v Soundair Corp (1991), (ON CA), 4 OR (3d) 1 (CA) at para. 16: 1. It should consider whether the receiver has made a sufficient effort to get the best price and has not acted improvidently. 2. It should consider the interests of all parties. 3.

It should consider the efficacy and integrity of the process by which offers are obtained. 4. It should consider whether there has been unfairness in the working out of the process. [15] Here, the Receiver made extensive efforts through direct and indirect contacts of potential bidders and advertising to obtain thebest price for the assets. There is no evidence of any improvident actions by the Receiver.

The Receiver spent time with each interestedpotential bidder to assist with their due diligence activities and other aspects of the bidding process. [16] As the Receiver reported, a review of the submitted bids shows that Almaden was the only bidder specifically for the Loganinterests. While other bidders referred to the Logan interests, and included them in their bids, their overall bids were withdrawn orunacceptable to the Receiver. Almaden provided the best price for the Logan interests.

Almaden is an experienced mining explorationcompany based in Vancouver. [17] The Receiver noted that although the Logan interests represent a small fraction of the Yukon Zinc assets and property, their salewill generate some funds for the estate which is in the interests of all parties. Yukon government supports this sale and Welichem doesnot oppose it. [18] The Almaden offer was obtained through the SISP process. This process was approved by the Court as fair, transparent andcommercially efficacious. [19] Finally, the evidence shows the SISP process was conducted by the Receiver honestly and in good faith.

There is no suggestionor evidence of unfairness in the way the process was carried out.

[20] The finalizing of this sale process will be simple: the 60% interest in the Logan assets under the joint venture agreement will betransferred to Almaden. The other 40% are already in the name of Almaden. The commercial joint venture agreement will becomedefunct on closing. The Receiver advised the splitting off of these interests from the remainder of the assets and property would not bedetrimental to any future sale process as they represent a small portion and there was no other bidder interested in solely the Loganinterests.

The cost to the Receiver of this transaction is reasonable given Almaden’s existing agreement and interests. [21] The Almaden Purchase Agreement, a redacted copy of which is included in the filed materials, is approved. Termination of the SISP [22] As noted above, the Receiver concluded that the SISP process did not lead to a viable sale. None of the bids was acceptable,either because the bidder withdrew from the process, or the bids contained conditions for closing or available consideration that wereunacceptably uncertain.

The specifics of each bid were not disclosed in the publicly filed eighth report of the Receiver, for reasons ofconfidentiality. This issue is addressed below. [23] In general, the reasons why certain bidders withdrew from the process included: (

a) the realization during the SISP process of the need for the purchaser to obtain a new water licence instead of assuming thecurrent water licence, a process which could take two years or more; (

b) the possibility of ongoing litigation over the Welichem assets which remain at the site (the Court has been advised that thematter is in the process of settling, although the settlement agreement is not yet finalized); (

c) the unknown extent and costs of reconstruction to make the Mine operational, given the flooded state of the underground part ofthe Mine and its questionable structural integrity; (

d) the inability to determine potential value of the mineral claims because of an absence of updated exploration results; and (

e) the uncertainty of reclamation or remediation costs and how they will be shared with the Yukon government. [24] The Receiver explained that there was not one issue that presented a bar to the bidders who withdrew or were rejected; theconcerns were different for each bidder. [25] The Order approving the SISP or the SISP do not contain a provision for termination of the SISP process. However, s. 30(

a) ofthe SISP states that the Receiver, in consultation with Yukon government, may reject at any time any bid that is: (

i) inadequate or insufficient; (ii) not in conformity with the requirements of the BIA, this SISP or any orders of the Court applicable to YZC or the Receiver; or (iii) contrary to the interests of YZC’s estate and stakeholders as determined by the Receiver; [26] Further, s. 23(

f) of the SISP contemplates the possibility that the Receiver may report to the Court that it will not proceed withany one or more of the bids. [27] The jurisprudence offers little guidance on the role of the court in a situation of termination of a sales process in the event of noacceptable bidders.

The Receiver noted one decision in which the Supreme Court of British Columbia observed it saw no reason why theReceiver could not recommend against completion of a sale, and that it had a duty to advise the court of any reason why the court mightconclude the sale should not be approved (Bank of Montreal v On-Stream Natural Gas Ltd Partnership (1992), 29 CBR (3) 203 (BC SC)at para. 24). [28] The case law is clear that in reviewing a sales process the court is to defer to the business expertise of the Receiver, and is not tointervene or “second guess” the Receiver’s recommendations and conclusions (Royal Bank of Canada v Keller & Sons Farming Ltd,2016 MBCA 46 at para. 11).

The court is to ensure the integrity of the process is maintained through the exercise of procedural fairness in any negotiations and bidding. … The court should not proceed against the recommendations of its Receiver except in special circumstances and where the necessityand propriety of doing so are plain. … [Crown Trust Co v Rosenberg (1986), (ON SC), 60 OR (2d) 87 (H Ct

J) atpara. 65] [29] Here, the Receiver undertook a thorough process in attempting to attract and identify an acceptable bidder and ultimatepurchaser, in consultation with Yukon government and the Kaska Nation. By its own account, it provided substantial assistance topotential bidders throughout the summer of 2021, including extending deadlines, participating in multiple calls to clarify and understandtheir proposals, and providing them with necessary information and connections to enable them to complete their due diligence. TheSISP has already been approved as fair and reasonable by this Court and as noted above, the Receiver’s appears to have implemented theSISP fairly and in good faith.

[ 30 ] Yukon government agreed with the termination of the SISP, indicating that the Receiver’s good faith efforts were the best that could be achieved at this time.

Welichem did not oppose the termination of the SISP. [ 31 ] While the confidential documents set out the more detailed reasons why the Receiver has concluded there are no appropriate bidders, scrutiny or assessment of these reasons is not the Court’s role. [ 32 ] I note that the SISP process may have some value for future in that entities with interest in the project were identified and educated about the process, and a large amount of information was gathered and learned about the Mine both by the interested parties and the Receiver in consultation with Yukon government and the Kaska Nation.

This may have some value for future bidding or sales processes. [ 33 ] For these reasons, the termination of the SISP is approved. The draft Approval and Vesting Order filed by the Receiver on this application is approved, with appropriate adjustments to reflect appearances of counsel. Sealing Order [ 34 ] The Receiver seeks an order sealing its Confidential Supplemental Eighth Report to the Court containing the results of the SISP and attached documents. The report sets out details of the process including: (

a) the names of the bidders, and the kind of work the Receiver engaged in over the summer of 2021 to advance the bids according to the evaluation criteria; (

b) the details of each bid, including price and conditions; (

c) the challenges of each bid; (

d) the Receiver’s review and application of the evaluation criteria; and (

e) the reasons why certain bidders withdrew or were eliminated from the process. [ 35 ] The documents attached to the report include unredacted: (

a) expressions of interest; (

b) binding bids; (

c) Removal Letters; (

d) Termination Letters; (

e) Almaden’s bid; and (

f) Almaden’s Purchase Agreement. [ 36 ] The Receiver argues that the information in this report disclosing its application of the evaluation criteria and the challenges and problems with the bids, as well as the documents themselves, contain sensitive commercial information that would cause harm to any future efforts to market the Mine.

Information about the identity of bidders, the proposed purchase prices, the proposed terms and conditions, the reasons for the bidders’ withdrawal or rejection would affect the possibility of free and open negotiation in any future sale process. [ 37 ] The two-part test for a sealing order was set out in Sierra Club of Canada v Canada (Minister of Finance) , 2002 SCC 41 (“ Sierra Club ”) at 543-44: (

a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (

b) the salutary effects of the [sealing] order including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

[ 38 ] The recent Supreme Court of Canada decision of Sherman Estate v Donovan , 2021 SCC 25 (“ Sherman Estate ”) confirmed the test set out in Sierra Club continues to be an appropriate guide for judicial discretion (at para.43), and added the following three core prerequisites to be met before the imposition of a sealing order at para. 38: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects. [ 39 ] In the insolvency context, especially where there is a sale process, it is a standard practice to keep all aspects of the bidding or sales process confidential.

Courts have found this appropriately meets the Sierra Club test as modified by Sherman Estate , as sealing this information ensures the integrity of the sales and marketing process and avoids misuse of information by bidders in a subsequent process to obtain an unfair advantage.

The important public interest at stake is described as the commercial interests of the Receiver, bidders, creditors and stakeholders in ensuring a fair sales and marketing process is carried out, with all bidders on a level playing field. [ 40 ] This requirement for confidentiality no longer exists when the sale process is completed and as a result any sealing order is generally lifted at that time.

As noted by the court in the insolvency proceeding of GE Canada Real Estate Financing Business Property Co v 1262354 Ontario Inc , 2014 ONSC 1173 at paras. 33-34 : The purpose of granting such a sealing order is to protect the integrity and fairness of the sales process by ensuring that competitors or potential bidders do not obtain an unfair advantage by obtaining sensitive commercial information about the asset up for sale while others have to rely on their own resources to place a value on the asset when preparing their bids.

To achieve that purpose a sealing order typically remains in place until the closing of the proposed sales transaction. If the transaction closes, then the need for confidentiality disappears and the sealed materials can become part of the public court file. If the transaction proposed by the receiver does not close for some reason, then the materials remain sealed so that the confidential information about the asset under sale does not become available to potential bidders in the next round of bidding, thereby preventing them from gaining an unfair advantage in their subsequent bids.

The integrity of the sale process necessitates keeping all bids confidential until a final sale of the assets has taken place. [emphasis added]. [ 41 ] Look Communications Inc v Look Mobile Corp (2009), 183 ACWS (3d) 736 (Ont Sup Ct) (“ Look ”) was decided not in the insolvency context but in the context of a court-approved sales process requiring the appointment of a monitor, and a plan of arrangement under the Business Corporations Act , R.S.C. 1985, c. C.44 . The facts were like those of the case at bar in that only two of the five assets were sold through the initial sales process.

The court ordered the monitor file an unredacted version of its report after the sale was completed and the monitor’s certificate filed with the court. However, the company requested a further sealing of the report and documents for six months because it was continuing its efforts to sell the remaining assets and was in discussion with some of the same parties who submitted bids under the initial completed sales process.

The court applied the principles in Sierra Club , noting that the “important commercial interest” must be more than the specific interest of the party requesting the confidentiality order, such as loss of business or profits.

There must be a general principle at stake, such as a breach of a confidentiality agreement through the disclosure of the information. [ 42 ] The court in Look noted at para. 17: It is common when assets are being sold pursuant to a court process to seal the Monitor’s report disclosing all of the various bids in case a further bidding process is required if the transaction being approved falls through. Invariably, no one comes back asking that the sealing order be set aside.

That is because ordinarily all of the assets that were bid on during the court sale process end up being sold and approved by court order, and so long as the sale transaction or transactions closed, no one has any further interest in the information. In 8857574 Ontario Inc. v. Pizza Pizza Ltd. (1994) 23 B.L.R. (2 nd ) 239 , Farley J. discussed the fact that valuations submitted by a Receiver for the purpose of obtaining court approval are normally sealed.

He pointed out that the purpose of that was to maintain fair play so that competitors or potential bidders do not obtain an unfair advantage by obtaining such information while others have to rely on their own resources.

In that context, he stated that he thought the most appropriate sealing order in a court approval sale situation would be that the supporting valuation materials remain sealed until such time as the sale transaction had closed. [ 43 ] The court in Look granted the company’s request for a sealing order for a further six months, finding that even though the remaining sales would not occur under the original sale process, the commercial interest in ensuring the assets were sold for the benefit of all stakeholders was the same. [ 44 ] Here, I acknowledge the importance of sealing the Receiver’s Confidential Supplemental Eighth Report to the Court and attached

documents during the sale process and until any ongoing sale process is complete. The important interest is the commercial interests ofthe bidders, the creditors, the stakeholders and maintaining the integrity of the sales process. The Receiver’s counsel advised theyrepresented to the bidders that the process would be confidential until completion. The bidders all signed non-disclosure agreementsbefore they received access to the data. These interests outweigh the negative effects of a sealing order.

Redaction of the documents orreports is not a reasonable alternative as virtually all of the information contained in the report and documents (other than the parts thatare already public) is confidential for the reasons noted. [45] The issue of a future sales process of some kind however, is far less certain than it was in Look, where the new sales process wasunderway at the time of the court application. All parties in this case agree that the current Receiver-led SISP process is exhausted, andthe unopposed or supported request for court approval of its termination confirms this.

The Receiver has no intention of starting a newsales process. [46] Counsel for Yukon government indicated that they would be open to discussing the sale of some or all of the Yukon Zinc assetsin future if approached by a potential purchaser. Yukon government confirmed it had no intention of commencing a similar sales processto the SISP in the near future, as their priority will be care and maintenance of the Mine when this responsibility is transitioned from theReceiver to them, likely in the fall of 2022. [47] The Receiver noted in its public reports several of the ongoing issues affecting a potential sale.

These include the regulatorycomplexities of obtaining a new water licence, the uncertainty of the responsibilities and costs of restoring the Mine to an operable state,the uncertain value of the mineral claims, and the possibility of ongoing litigation over the Welichem assets if a settlement is notachieved. Unless one or more of these factors changes, the possibility of a future sale is unlikely, in the Receiver’s view.

This is differentfrom Look, where the new sales process had commenced at the time the sealing order was requested. [48] The Supreme Court of Canada has emphasized the importance of the fundamental principle of open and accessible courtproceedings. Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the properfunctioning of our democracy (Canadian Broadcasting Corp v New Brunswick (Attorney General), (SCC), [1996] 3SCR 480 at para. 23 (“New Brunswick”); Vancouver Sun (Re), 2004 SCC 43 at paras. 23-26).

Public and media access to the courts is theway in which the judicial process is scrutinized and criticized. “The open court principle has been described as “the very soul of justice,”guaranteeing that justice is administered in a non-arbitrary manner” (New Brunswick at para. 22). There is a strong presumption in favourof court openness.

Judicial discretion in determining confidentiality or sealing orders must be exercised against this backdrop. [49] Given these unique factual circumstances, and applying the legal principles described above, I conclude the following in relationto sealing the materials. [50] Once the Almaden sale is complete, and the Receiver’s certificate has been filed with the Court, the redacted material related toAlmaden’s purchase of the Logan Interests will be unsealed. The Receiver has disclosed most of the information related to this purchaseand sale but some information such as the purchase price remains redacted.

As the sale of this portion of the assets will be over once thistransaction is completed, there is no reason to continue to seal the Almaden documents contained in the Confidential SupplementalEighth Report to Court that have not already been disclosed. [51] The remoteness of a future sale of the remaining assets evident from the Receiver’s materials and submissions means that thelength of a sealing order could be indefinite. As noted in Sierra Club at 545, a court is to restrict the sealing order as much as isreasonably possible while preserving the important interest in question.

While it is still in the public interest to maintain the sealing orderwhere a future sale is a possibility, at some point that possibility may no longer be realistic. Or, so much time will have passed that theinformation in the original bids may have little relationship to the actual situation so the importance of the interest to be protected isdiminished. [52] The Receiver in this case advised that some of the current circumstances that prevented the success of the sales process wouldhave to change before a sale is likely.

Yukon government confirmed that their focus in the near term will be on care and maintenanceissues and not on the longer term issues related to remediation, reconstruction, or water licence. It is possible, however, over the next fewyears, that some of these circumstances may change. For example, the litigation between Welichem and the Receiver over its assets willeither be settled or judicially determined, more clarity on the responsibilities for remediation or even further steps taken towardsremediation and reconstruction may occur, or more work may be done to value the mineral claims.

Some or all of these changes couldlead to a successful sale. [53] I will grant the sealing order over the Receiver’s Confidential Supplemental Eighth Report to the Court, and attached documents,except for the documents related to the Almaden purchase once the Receiver’s certificate is filed with the Court, for a period of threeyears, or until further order of this Court.

The report shall be filed as of the date of these Reasons. [54] The draft sealing order filed by the Receiver on this application should be modified to reflect the terms set out in these reasonsand to reflect the presence of all counsel. ___________________________ DUNCAN C.J.