Annual Report 2009

ISSN 1925-7511 = Annual Report (Ontario. Court of Appeal. Online)

Table of Contents

  1. Message from The Honourable Chief Justice Warren K. Winkler

  2. Judges of the Court of Appeal

    1. List of Justices and Dates of Appointment
    2. Court Photo, taken April 2008

  3. Year in Review

    1. Judicial Complement
    2. Workload of the Court
    3. Law Clerk Programme
    4. Inmate and Mental Health Appeals
    5. Expedited Crown Wardship Appeals
    6. Judicial Education
    7. Justice Sector Committees

      1. Court of Appeal Media Committee
      2. Information Technology
      3. Facilities and Accessibility

    8. In Memoriam

  4. Statistics

    1. Workload of the Court

[Page 2]

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[Page 3]

Message from the Chief Justice of Ontario

The Honourable Warren K. Winkler
Chief Justice of Ontario

The justice system in Ontario is blessed with a dedicated array of judges, lawyers, administrators and community agencies who work each day to promote fair and open justice for all of the users of our courts.

The open court concept is fundamental to our justice system. It is the driving force behind the provision of public access to judicial proceedings, court information and reasons for judgment, as well as the availability of court proceedings in both official languages. An open and transparent justice system promotes public confidence in the day-to-day events that transpire in our courts. It is a cherished principle within our vibrant, democratic society.

In recognition of the need to be open, accountable and fair, the Court of Appeal for Ontario has taken a number of positive steps over the last year to enhance its services and increase opportunities for the public to better understand what is happening in our Court. From supporting the successful duty counsel and pro bono programmes, to working more effectively with the media and proactively sharing information about court sittings and decisions, the Court of Appeal is seeking ways to better serve the public and promote an accessible justice system.

To this end, the Court of Appeal for Ontario is pleased to present its first Annual Report.

[Page 4]

Judges of the Court of Appeal for Ontario

Dates of Appointment

Justice Date of Appointment

The Honourable Warren K. Winkler (C.J.O.)

  • Chief Justice of Ontario: June 1, 2007
  • Regional Senior Judge of the Superior Court of Justice (Toronto Region): March 12, 2004
  • Superior Court of Justice: April 19, 1999
  • Ontario Court of Justice (General Division): June 16, 1993

The Honourable Dennis R. O’Connor (A.C.J.O.)

  • Associate Chief Justice of Ontario: October 30, 2001
  • Court of Appeal: June 11, 1998

The Honourable David H. Doherty

  • Court of Appeal: September 1, 1990
  • Supreme Court of Ontario, High Court of Justice: September 2, 1988

The Honourable Karen M. Weiler

  • Court of Appeal: March 12, 1992
  • Ontario Court of Justice (General Division): September 1, 1990
  • Supreme Court of Ontario, High Court of Justice: February 21, 1989
  • District Court of Ontario: January 1, 1985
  • County and District Courts of Ontario: November 27, 1980

The Honourable John I. Laskin

  • Court of Appeal: January 27, 1994

The Honourable Marc Rosenberg

  • Court of Appeal: December 12, 1995

The Honourable Michael J. Moldaver

  • Court of Appeal: December 22, 1995
  • Ontario Court of Justice (General Division): September 1, 1990
  • Supreme Court of Ontario, High Court of Justice: April 12, 1990

The Honourable Stephen T. Goudge

  • Court of Appeal: December 19, 1996

The Honourable Stephen Borins*

  • Court of Appeal: November 18, 1997
  • Ontario Court of Justice (General Division): September 1, 1990
  • District Court of Ontario: January 1, 1985
  • County and District Courts of Ontario: July 15, 1975

[Page 5]

The Honourable Kathryn N. Feldman

  • Court of Appeal: June 11, 1998
  • Ontario Court of Justice (General Division): December 24, 1990

The Honourable James C. MacPherson

  • Court of Appeal: May 25, 1999
  • Superior Court of Justice: April 19, 1999
  • Ontario Court of Justice (General Division): June 24, 1993

The Honourable Robert J. Sharpe

  • Court of Appeal: May 25, 1999
  • Superior Court of Justice: April 19, 1999
  • Ontario Court of Justice (General Division): February 28, 1995

The Honourable Janet M. Simmons

  • Court of Appeal: August 22, 2000
  • Regional Senior Judge of the Superior Court of Justice (Central West Region): October 12, 1999
  • Superior Court of Justice: April 19, 1999
  • Ontario Court (General Division): September 16, 1991
  • Ontario Court (Provincial Division): December 21, 1990

The Honourable Eleanore A. Cronk

Court of Appeal: July 31, 2001

The Honourable Eileen E. Gillese

  • Court of Appeal: January 25, 2002
  • Superior Court of Justice: April 19, 1999
  • Ontario Court of Justice (General Division): January 8, 1999

The Honourable Robert P. Armstrong

  • Court of Appeal: January 25, 2002

The Honourable Robert A. Blair

  • Court of Appeal: November 5, 2003
  • Regional Senior Judge of the Superior Court of Justice (Toronto Region): October 12, 1999
  • Superior Court of Justice: April 19, 1999
  • Ontario Court of Justice (General Division): March 22, 1991

[Page 6]

The Honourable Susan E. Lang

  • Court of Appeal: March 12, 2004
  • Superior Court of Justice: October 12, 1999
  • Regional Senior Judge of the Superior Court of Justice (Toronto Region): April 19, 1999
  • Regional Senior Judge of the Ontario Court of Justice (General Division) (Toronto Region): October 29, 1996
  • Ontario Court of Justice (General Division): September 1, 1990
  • District Court of Ontario: February 21, 1989

The Honourable Russell G. Juriansz

  • Court of Appeal: March 12, 2004
  • Superior Court of Justice: April 19, 1999
  • Ontario Court of Justice (General Division): March 17, 1998

The Honourable Jean L. MacFarland

  • Court of Appeal: November 19, 2004
  • Superior Court of Justice: April 19, 1999
  • Ontario Court of Justice (General Division): February 6, 1996
  • Regional Senior Judge of the Ontario Court of Justice (General Division) (Central East Region): September 1, 1990
  • Supreme Court of Ontario (High Court of Justice): September 23, 1987

The Honourable Harry S. LaForme

  • Court of Appeal: November 19, 2004
  • Superior Court of Justice: April 19, 1999
  • Ontario Court of Justice (General Division): January 27, 1994

The Honourable Paul S. Rouleau

  • Court of Appeal: April 14, 2005
  • Superior Court of Justice: May 31, 2002

The Honourable J. David Watt

  • Court of Appeal: October 12, 2007
  • Superior Court of Justice: April 19, 1999
  • Ontario Court of Justice (General Division): September 1, 1990
  • Supreme Court of Ontario, High Court of Justice: October 4, 1985

The Honourable Gloria J. Epstein

  • Court of Appeal: December 13, 2007
  • Superior Court of Justice: April 19, 1999
  • Ontario Court of Justice (General Division): June 17, 1993

*See “In Memoriam”, page 16.

[Page 7]

Justices of the Court of Appeal for Ontario

COURT PHOTO Caption below: Court Photo taken April 2008. Missing from the photo are Doherty and Blair JJ.A.]

[Page 8]

Year in Review

Judicial Complement

In 2009, the Court of Appeal for Ontario consisted of twenty-two full-time judges and two supernumerary judges.

The number of supernumerary judges was reduced by one with the death of Justice Stephen Borins in June of 2009. Please see “In Memoriam”, at page 16.

Workload of the Court

The volume of cases heard by the Court in 2009 remained steady in relation to previous years. Litigants continue to have their appeals heard in a timely manner. The decisions of the Court are, with few exceptions, delivered within the targeted six-month period from the date of the hearing.

For more details on the workload of the Court, see “Statistics”, at page 17.

[Page 9]

Law Clerk Programme

The Law Clerk Committee, consisting of Justices Laskin, Feldman, Gillese and Blair, oversees the law clerk programme at the Court of Appeal, while the research lawyers of the Court provide day-to-day supervision. The law clerks work on a wide variety of cases, including constitutional, criminal, civil, family and administrative law matters.

Law clerks prepare pre-hearing memos, conduct legal research and edit judgments, along with other special projects assigned by the judges. Law clerks are encouraged to attend court proceedings, at both the Court of Appeal and the nearby trial courts, and have the opportunity to travel once in the year to Kingston, Ontario, to observe the appeals by unrepresented inmates. Law clerks also participate in a variety of pro bono projects, involving organizations such as the Ontario Justice Education Network and the Lawyers Feed the Hungry programme.

The clerkship year begins in either August or September, and continues for a period of 11 to 12 months. Each law clerk is assigned to either one or two judges of the Court. This pairing changes halfway through the year to provide the law clerk with broader exposure to the activities and judges of the Court.

Law Clerks 2008-2009:

Karen Drake, Toronto; Claire Houston, Queen’s; Evan Marcus, Osgoode; Amy Ohler, Windsor; Michael Pal, Toronto; James Renihan, Toronto; Byron Shaw, British Columbia; Linsey Sherman, Ottawa; Alexa Sulzenko, Toronto; Jane Thomson, Dalhousie; David Vitale, Osgoode; and Megan Williams, Queen’s

Law Clerks 2009-2010:

Danny Auron, Osgoode; Diana Backhouse, Victoria; Aileen Cheon, Victoria; Gail Elman, Toronto; Brendan Green, Ottawa; Zvi Halpern-Shavim, Toronto; Mabel Lai, Toronto; Kate Leslie, Western; Christine Muir, Dalhousie; Kiran Patel, Toronto; Michael Perlin, Queen’s; Vincent-Joël Proulx, McGill; Justin Safayeni, Toronto; Elsa Sardinha, Windsor; Joydeep Sengupta, McGill; Daniel Sheppard, Osgoode; and Benjamin Thibault, Harvard

[Page 10]

Inmate & Mental Health Appeals

These programmes provide free duty counsel to inmates on inmate appeals and free counsel or amicus curiae at mental health appeals.

Inmate Appeals

Inmate appeals proceed by way of an expedited process and require a simpler, modified appeal record. Responsibility for preparation of the record lies with the Crown, rather than the inmate. Factums of the appellant are not mandatory. Additionally, the Court has instituted a duty counsel programme with the cooperation of the Crown, Legal Aid Ontario and experienced members of the defence Bar. Duty counsel review the record and assist the appellant in court. Duty counsel may also identify the need to obtain additional material for the hearing or assist the inmate to seek an order under s. 684 of the Criminal Code, appointing legal counsel. This programme has dramatically improved the quality of the inmate appeals at the Court.

Mental Health Appeals

With the cooperation of the Crown, the Psychiatric Patient Advocacy Office, Legal Aid Ontario and experienced members of the mental health and criminal law Bars, the Court has instituted an amicus curiae programme to assist with appeals from the Ontario Review Board. An amicus curiae, or “friend of the Court”, is appointed where the patient is unrepresented, regardless of whether the patient is appealing from or responding to an appeal from a disposition of the Ontario Review Board. Since its inception in 2005, the amicus curiae programme has greatly improved the Ontario Review Board appeal process at the Court. The programme allows a patient’s legal interests to be presented to the Court where the patient may be resistant to representation or unable to discern or clearly articulate the merits of the appeal.

[Page 11]

Expedited Crown Wardship Appeals

This programme was put in place to meet the concern that delays are negatively affecting young children who await a final disposition on their placement.

While only a small number of Crown wardship no-access orders are appealed to this Court each year, a strategy has been developed to reduce potential sources of procedural delay that can be damaging to young children awaiting a final disposition. In collaboration with the Ontario Court of Justice and the Superior Court of Justice, the Bar, Legal Aid Ontario, Pro Bono Law Ontario, the Ministry of the Attorney General and the various children’s aid societies, the Court is:

  • assigning one judge with expertise in child protection matters to monitor the progress of child protection files and to facilitate timely compliance with the rules;
  • relying on enhanced electronic tracking of child protection files; and
  • working to improve access to legal advice for unrepresented litigants in Crown wardship appeals.

[Page 12]

Judicial Education

The Court has had an opportunity to participate in a number of beneficial educational programmes over the past year. In addition to engaging in a Bench-Bar-Administration outreach event in the Central East Region, the Court also participated in a seminar focused on the theme of justice and the media. The Court looks forward to the first ever joint meeting of the Court of Appeal for Ontario and the Quebec Court of Appeal in the fall of 2010.

The members of the Court have also commendably participated in a wide variety of educational activities, nationally and internationally. Over the past year, lawyers and judges across Canada, China, the United States, Vietnam, South America, France, Italy, Britain, Australia, Ethiopia, Russia, Tanzania, Spain, Rwanda, Nigeria, Uganda and Ukraine have had the benefit of learning from many of our distinguished colleagues on the Court.

[Page 13]

Justice Sector Committees

Court of Appeal Media Committee

The media is the lens through which the court sees the public, and the lens through which the public sees the Court.

In recognition of the important role that the media plays as the “eyes and ears” of the public, and to improve the ability of the media to report accurately on cases, the Court, through its Media Committee, has taken a number of steps over recent years to modernize its services:

  • Posting a 60-day list of upcoming appeals on our website;
  • Distributing e-notices of decisions and publication bans via RSS feed, and posting this information on a special page of the Court’s website;
  • Providing three days’ advance notice of decisions that will likely have heightened public interest;
  • Providing one day’s notice for all civil judgments via daily posting on the internet with RSS link;
  • Posting the names of designated media contacts on our website, and expediting counter service for the media;
  • Continuing to provide media lock-ups for extraordinary cases; and
  • Providing a joint media-judiciary education programme for staff of the Court.

[Page 14]

Information Technology

A fair and open court system demands a modern, secure technological infrastructure to meet the expectations of the public in this electronic age.

Judicial Information Management

Through the collaboration of the judiciary and the provincial government, all three levels of courts in Ontario now have their own judicial information technology organization that reports directly to the judiciary. This organization is responsible for the management and control of all judicial information. As a result, the judiciary has its own e-mail network, internet access, databases, and document storage and retrieval systems. This ensures that all judicial information is securely segregated from government information and remains independent.

E-file of Court Documents

At present, the Rules of Civil Procedure mandate that civil factums be filed electronically. The civil rules also require that an electronic copy of the transcript be filed “unless the court reporter did not prepare an electronic version”. In criminal matters, counsel may file electronic factums, but it is not mandatory. The Court is currently reviewing its e-filing practices with a view to expanding the scope of the requirement to file documents electronically in both civil and criminal matters.

Digital Recording of Appeal Hearings

Over the past year, the Court was one of the pilot project sites for a new, province-wide, digital recording system. The project was a success and has been implemented, on a permanent basis, in all of our courtrooms, as well as at the inmate sittings held in Kingston. The Court is now developing a policy on the appropriate release of digital recordings of proceedings.

[Page 15]

Facilities and Accessibility

Accessibility promotes inclusivity, openness and equity. As a public institution, it is vital that the programmes and services carried out by the courts across our province be accessible to their users.

Osgoode Hall Facilities Project

In 2009, the Osgoode Hall Facilities Project was completed. The results of the work allowed the Court to accommodate new programme demands and new staff. Many offices and large segments of administrative space within Osgoode Hall were affected by the project, which included the refurbishment of the law clerk corridor, judicial chambers and the installation of a high-density filing system.

Osgoode Hall Accessibility Project

Osgoode Hall was one of the first courthouses in Ontario to complete its work under the provincial government’s Accessibility Project. The following are some of our achievements:

  • A new ramp was built to make the front door of Osgoode Hall wheelchair accessible;
  • An Accessibility Coordinator has been identified and contact information is now advertised on the Ministry of the Attorney General’s website, on the Court’s website and on newly posted signage at the front door of the courthouse; and
  • All staff have been trained in courthouse accessibility and accommodation requirements.

[Page 16]

In Memoriam

The Honourable Justice Stephen Borins

Sadly, the legal community suffered a great loss with the passing of Justice Stephen Borins on June 13, 2009. He excelled as a lawyer, a Bencher of the Law Society of Upper Canada, an academic and a judge. He will be remembered for the wisdom which is manifest in his many decisions. He will also be remembered for his big smile, his enjoyment of classical music, his love of sports, his steadfast friendships, his devotion to his family and his loyalty to the Court.

[Page 17]

Statistics

Workload of the Court, 2004-2009

[Page 18]

Appeals Filed per Year, 2004-2009*

Appeals Filed per Year, 2004-2009*

The number of appeals filed with the Court per year in the areas of family, civil, criminal and inmate appeals has remained relatively steady over the past six years, although there has been a modest decline in the number of civil appeals filed during this time period.

*Appeals filed per year includes appeals “as of right” and leave appeals submitted that were granted.

[Page 19]

Appeals Disposed of per Year, 2004-2009

Appeals Disposed of per Year, 2004-2009

The number of appeals disposed of by the Court per year in family, civil, criminal and inmate appeals has remained relatively consistent over this reporting period with modest fluctuations in the number of appeals disposed of from year to year in the areas of non-family civil and criminal law.

[Page 20]

Appeals Filed as of Right per Year, 2004-2009

Appeals Filed as of Right per Year, 2004-2009

The number of appeals filed with the Court “as of right” (not requiring the leave of the Court) per year in family, civil, criminal and inmate appeals has remained relatively steady, although there has been a modest decline over the reporting period in the number of civil and criminal “as of right” appeals filed.

[Page 21]

Leave Applications Submitted per Year, 2004-2009

Leave Applications Submitted per Year, 2004-2009

The number of leave to appeal applications submitted to the Court per year in civil and criminal law matters has remained relatively steady during this reporting period. Family law matters do not require leave to appeal, and from 2004-2009 no inmates applied for leave to appeal (with one exception in 2004).

[Page 22]

Percentage of Leave Applications Granted per Year, 2004-2009

 

Civil

Criminal

2004

39%

21%

2005

32%

21%

2006

22%

36%

2007

28%

27%

2008

22%

18%

2009

36%

29%

The percentage of leave applications granted has fluctuated over the reporting period for both civil and criminal matters. Family law matters do not require leave to file an appeal.

[Page 23]

Number of Motions to Intervene Granted per Year, 2004-2009

Number of Motions to Intervene Granted per Year, 2004-2009

The Court receives a small number of motions to intervene per year and, as can be seen from the graph above, these interventions are typically sought in civil law appeals rather than criminal law appeals.

[Page 24]

Number of Motions to Intervene Dismissed per Year, 2004-2009

Number of Motions to Intervene Dismissed per Year, 2004-2009

The Court receives a small number of motions to intervene per year and, as can be seen from this graph and the one found on p. 23, the majority of the motions are granted rather than dismissed.

[Page 25]

Number of Appeals Perfected and Awaiting Hearing at Year End, 2004-2009

Number of Appeals Perfected and Awaiting Hearing at Year End, 2004-2009

The number of non-family civil appeals perfected and awaiting hearing at the end of each year during the reporting period has declined steadily. The number of appeals perfected and awaiting hearing in family and criminal law matters has fluctuated and has not shown the same trend as noted with non-family civil appeals.

[Page 26]

Single Judge Motions Filed per Year, 2004-2009

Single Judge Motions Filed per Year, 2004-2009

The total number of single judge motions filed with the Court from 2004-2009 has remained relatively steady, although there are modest fluctuations year-over-year in the number of motions filed as between civil and criminal law appeals.

[Page 27]

Single Judge Motions Disposed of per Year, 2004-2009

Single Judge Motions Disposed of per Year, 2004-2009

The total number of motions disposed of by a single judge per year remained relatively steady over the reporting period.

[Page 28]

Panel Motions Filed per Year, 2004-2009

Panel Motions Filed per Year, 2004-2009

The total number of motions filed per year with the Court remained relatively consistent during the reporting period.

[Page 29]

Panel Motions Disposed of, 2004-2009

Panel Motions Disposed of, 2004-2009

Over the course of the reporting period, the total number of motions disposed of per year by a panel of the Court has been relatively consistent.

[Page 30]

Number of Bail Applications and Reviews, 2004-2009

Number of Bail Applications and Reviews, 2004-2009

The number of bail applications heard by the Court in either motions court or as a bail review has declined modestly over the reporting period.

[Page 3`]

Appeals Heard on their Merits per Year, 2004-2009

Appeals Heard on their Merits per Year, 2004-2009

The number of appeals heard on their merits per year from 2004-2009 remained relatively steady except in criminal law matters, where there has been a modest decline.

[Page 32]

Appeals Dismissed as Abandoned per Year, 2004-2009

Appeals Dismissed as Abandoned per Year, 2004-2009

The number of appeals dismissed as abandoned by the Court per year has only modestly fluctuated over the reporting period.

[Page 33]

Percentage of Appeals Allowed per Year, 2004-2009

 

Family

Non-Family Civil

Criminal

Inmate

2004

29%

31%

40%

22%

2005

46%

37%

39%

18%

2006

48%

34%

35%

25%

2007

36%

34%

36%

19%

2008

27%

29%

36%

16%

2009

34%

27%

35%

20%

The percentage of appeals allowed per year has remained relatively consistent in the criminal area and has fluctuated to a greater extent in the family and non-family civil areas throughout the reporting period.

[Page 34]

Percentage of Appeals Heard in which Judgments were Reserved, 2004-2009

 

Family

Non-Family Civil

Criminal
(Including  Inmate Appeals)

2004

26%

48%

51%

2005

40%

51%

60%

2006

33%

42%

43%

2007

37%

48%

40%

2008

30%

49%

45%

2009

41%

49%

42%

The percentage of family and non-family civil law reserved judgments was relatively consistent during the reporting period. The percentage of criminal law reserved judgments, while fluctuating year to year, appears to be modestly declining.

Total Number of Mental Health Appeals Filed and Disposed of, 2004-2009

 

Filed

Disposed

2004

28

28

2005

25

28

2006

31

24

2007

38

35

2008

33

29

2009

42

33

The number of mental health appeals filed during the reporting period has been relatively consistent.

[Page 35]

Judgments of the Court, 2004-2009

   

Family

Non-Family Civil

Criminal (Including Inmate Appeals)

2004

Unanimous

59

481

626

 

Split*

0

7

7

2005

Unanimous

58

468

609

 

Split

0

10

8

2006

Unanimous

76

417

557

 

Split

2

12

9

2007

Unanimous

64

426

577

 

Split

0

11

5

2008

Unanimous

54

451

560

 

Split

0

9

7

2009

Uanimous

46

432

585

 

Split

0

4

8

The number of judgments of the Court has remained relatively consistent in family, civil and criminal matters during the reporting period.

* Split decisions include cases with dissent, but not those with a concurring opinion.

[Page 36]

Total Number of Family Law Appeals in which a Party was Unrepresented by Counsel: 2004-2009

 

Appellant

Respondent

2004

26

8

2005

26

15

2006

41

27

2007

28

16

2008

34

18

2009

26

15

The total number of family law appeals in which a party was unrepresented by counsel has fluctuated throughout the reporting period.

Total Number of Non-Family Civil Law Appeals in which a Party was Unrepresented by Counsel: 2004-2009

 

Appellant

Respondent

2004

94

71

2005

103

34

2006

91

30

2007

96

46

2008

124

28

2009

116

26

The total number of non-family civil law appeals in which a party was unrepresented by counsel has fluctuated throughout the reporting period.

[Page 37]

Total Number of Criminal Law Appeals in which a Party was Unrepresented by Counsel: 2004-2009

 

Appellant

Respondent

2004

36

17

2005

37

22

2006

50

41

2007

36

22

2008

39

29

2009

57

53

The number of criminal appeals in which a party was unrepresented has fluctuated throughout the reporting period. These appeals do not include inmate appeals but do include Crown appeals in which the respondent was unrepresented, as well as appeals in which the appellant was not in custody.

Total Number of Motions in which a Party was Unrepresented by Counsel: 2004-2009

 

Moving Party

Responding Party

2004

358

254

2005

327

104

2006

374

138

2007

408

215

2008

428

185

2009

482

298

The total number of motions in which a party was unrepresented by counsel has fluctuated throughout the reporting period.

[Page 38]

Average time lapse (in months) from the date the application for leave was granted (or as of right appeal filed) to perfection: 2004-2009

 

Family

Non-Family Civil

Criminal

Inmate

2004

6

6

13

6

2005

6

5

14

6

2006

6

5

12

6

2007

6

5

11

7

2008

5

4

8

6

2009

4

2

4

4

The average time lapse from application to perfection was relatively consistent from 2004-2007, but has decreased considerably, particularly in criminal appeals, since 2008.

Average time lapse (in months) from the date of perfection for an appeal, to the hearing of the appeal: 2004-2009

 

Family

Non-Family Civil

Criminal

Inmate

2004

4

7

5

4

2005

4

6

5

3

2006

4

6

5

4

2007

5

6

4

3

2008

4

5

3

3

2009

3

4

3

2

The average time lapse from perfection to hearing of an appeal has been relatively consistent throughout the reporting period, but has decreased in all categories over the last two years.

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