All posts by Anne Calder

Foreigners in their own country: the inter-provincial business dilemma

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In the Beginning

“The proposal now before us [Confederation] is to throw down all barriers between the provinces – to make a citizen of one, citizen of the whole.”             –  George Brown, 1865

If only current inter-provincial trade regulators were so perceptive.

Our founding fathers might roll over in their graves if they were to see the state of  inter-provincial trade today, laughable – or pitiful – to the extent that long haul truck drivers from certain provinces have to change tires before entering another.

Those legislators were vehemently opposed to inter-provincial trade barriers (IPTBs) and included that sentiment in the 1867 Constitution.   Section 121 of the Constitution Act states that “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.”

Legislation today
Report cover of One Canada, One National Economy - Modernizing Internal Trade in Canada

photo credit Industry Canada

The 1994 Agreement of Inter-Provincial Trade currently governs the movement of people, goods, services and investments within Canada.   It  is intended to reduce barriers to trade within specific economic sectors, but not much has been done to aid inter-provincial trade in 20 years.

. Video explaining why removing the barriers to internal trade is important

For Atlantic Canadians doing business across Canada, many of the old hurdles still exist. The AIT does not address problems like the lack of recognition of other provinces’ professional credentials, food safety, truck safety, provincial business registration requirements, and highly restrictive rules for selling alcoholic beverages inter-provincially.

Canadian Federation of Independent Business (CFIB) president Dan Kelley says,

“Doing business with someone in Halifax should be at least as easy for a business in Burnaby as one in Budapest.”

As Canada’s premiers met in Charlottetown last week, the CFIB urged them to use the Canada-EU free trade agreement as a model for modernizing trade within Canada.

“When it comes to internal trade,” the CFIB proposed, “… the current system is outdated and imposes unnecessary barriers on small businesses. In many cases, it is often easier to trade overseas than it is to trade with other provinces within Canada. CFIB recommends provincial leaders improve inter-provincial trade by empowering their trade ministers to move forward on negotiating a more open market within Canada.”

“There is a lot of red tape involved in dealing with other provinces, and that’s a big disincentive to growth,” notes CFIB executive vice-president Laura Jones. “With international trade barriers coming down, our internal trade agreements need to keep up. This is a relatively easy way to boost the economy, and should be a top priority for every province.”

<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /> P.E.I. Premier Robert Ghiz is flanked by Ontario Premier Kathleen Wynne and Nova Scotia Premier Stephen McNeil, left, and Quebec Premier Philippe Couillard, right, at the closing news conference of the annual Council of the Federation meeting in Charlottetown on Friday. (ANDREW VAUGHN/CP)<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />

Nova Scotia Premier Stephen McNeil, Ontario Premier Kathleen Wynne, PEI Premier Robert Ghiz, Quebec Premier Philippe Couillard.                                  
Photo credit: Andrew Vaughn/CP

There were modest signs of movement last week in Charlottetown, but a great deal of work needs to be done to implement an inter-provincial trade agreement that benefits residents of all provinces and territories.

Importantly, the premiers agreed to undertake a comprehensive review of AIT.

Federal Industry Minister James Moore has been campaigning across Canada and wants to see “a massive change to the AIT.”  He notes that federal governments collectively have negotiated more than 40 international trade agreements since ATI came into effect and says,

” It’s just patently ludicrous for us to continue and to not make sure that we are taking full advantage of all of Canada’s economic opportunities for Canadians.”

What now?

“Every rule that makes it harder to move to, or sell to, another province drives home that our “fellow” Canadians regard us as foreigners”       –  MacDonald-Laurier-Institute

In 2010, Brian Lee Crowley, Robert Knox and John Robson wrote Citizen of One, Citizen of the Whole for the MacDonald-Laurier-Institute (think-tank) publication True North.

They cited three reasons why it is difficult to measure the cost of IPTBs: one, they are so numerous and varied that no one has managed to list them all; two, they have such complicated effects that it is impossible to measure costs with certainty; and three, the harm they do accumulates over time in ways that are even more difficult to measure.
Jordi Morgan, Vice-President Atlantic of CFIB says, “it makes sense that an investor from Nova Scotia should benefit from investing in a small business in PEI as much as they would from investing in their home province. Why should a small business owner in Sackville, NB be restricted from accessing capital investment from a relative who lives 10 minutes down the road in Amherst?”

2014-04-02-09-49-38-JORDI

Jordi Morgan, photo contributed

Morgan says the barriers go beyond “business” to impact workers directly. He says that “A CFIB report released last year highlighted barriers in the area of skilled trades.   Of all the trades certified in Atlantic Canada, there is not a single example of apprenticeship requirements being the same in all four provinces.”

Morgan also says that one province’s investment in inter-provincial business benefits the entire region by stimulating economic activity:  “With a population of a little more than 2 million, Atlantic Canada needs to allow not only a freer flow of goods and services, but a larger pool and freer flow of private capital.  The question to be asked is why we should have to restrict out-of-province investment in our home provinces?”

It makes no sense for Canada to provide greater benefits to our trading partners than to companies, workers and consumers within our country.

-John Manley, President and CEO, Canadian Council of Chief Executives, June 17, 2014

Preview of your graph

percentage of income going to top 10% of earners per province/territory

But Canadians need to be realistic.  What if we’re not talking about beer, but pesticides, fracking, or chemical waste?  Should any province be forced to do what others are doing, if it hurts their bottom line?   There will always be exceptions. Finding a happy medium may prove to be a gargantuan task.

Atlantic Canadians and internal trade – foreigners in their own country

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In the Beginning

“The proposal now before us [Confederation] is to throw down all barriers between the provinces—to make a citizen of one, citizen of the whole.”           ~ George Brown, 1865

If only current inter-provincial trade regulators were so perceptive.

Our founding fathers might roll over in their graves if they were to see the state of  inter-provincial trade today, laughable – or pitiful – to the extent that long haul truck drivers from certain provinces have to change tires before entering another.

Those legislators were vehemently opposed to inter-provincial trade barriers (IPTBs) and included their thinking in the 1867 Constitution.   Section 121 of the Constitution Act stated that “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.”

Legislation today
Report cover of One Canada, One National Economy - Modernizing Internal Trade in Canada

photo credit Industry Canada

The 1994 Agreement of Inter-Provincial Trade currently governs the movement of people, goods, services and investments within Canada.   It  is intended to reduce barriers to trade within specific economic sectors, but not much has been done to aid inter-provincial trade in 20 years.

Video explaining why removing the barriers to internal trade is important

For Atlantic Canadians doing business across Canada, many of the old hurdles still exist. The AIT does not address problems like the lack of recognition of other provinces’ professional credentials, food safety, provincial business registration requirements, and highly restrictive rules for selling alcoholic beverages inter-provincially. Canadian Federation of Independent Business (CFIB) president Dan Kelley says,

“Doing business with someone in Halifax should be at least as easy for a business in Burnaby as one in Budapest.”  

As Canada’s premiers met in Charlottetown last week, the CFIB urged them to follow the Canada-EU free trade agreement as a model for modernizing trade within Canada.

<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />
P.E.I. Premier Robert Ghiz is flanked by Ontario Premier Kathleen Wynne and Nova Scotia Premier Stephen McNeil, left, and Quebec Premier Philippe Couillard, right, at the closing news conference of the annual Council of the Federation meeting in Charlottetown on Friday. (ANDREW VAUGHN/CP)<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />

Nova Scotia Premier Stephen McNeil, Ontario Premier Kathleen Wynne, PEI Premier Robert Ghiz, Quebec Premier Philippe Couillard.                                  
Photo credit: Andrew Vaughn/CP

There were modest signs of movement last week in Charlottetown, but a great deal of work needs to be done to implement an inter-provincial trade agreement that benefits residents of all provinces and territories.

Importantly, the premiers agreed to undertake a comprehensive review of AIT.

Federal Industry Minister James Moore has been campaigning across Canada and wants to see “a massive change to the AIT.”  He notes that federal governments collectively have negotiated more than 40 international trade agreements since ATI came into effect and says,

” It’s just patently ludicrous for us to continue and to not make sure that we are taking full advantage of all of Canada’s economic opportunities for Canadians.”

What now?

In 2010, Brian Lee Crowley, Robert Knox and John Robson wrote Citizen of One, Citizen of the Whole for the MacDonald-Laurier-Institute (think-tank) publication True North.

They cited three reasons why it is difficult to measure the cost of IPTBs: one, they are so numerous and varied that no one has managed to list them all; two, they have such complicated effects that it is impossible to measure costs with certainty; and three, the harm they do accumulates over time in ways that are even more difficult to measure.
Jordi Morgan, Vice-President Atlantic of CFIB says, “it makes sense that an investor from Nova Scotia should benefit from investing in a small business in PEI as much as they would from investing in their home province. Why should a small business owner in Sackville, NB be restricted from accessing capital investment from a relative who lives 10 minutes down the road in Amherst?”

2014-04-02-09-49-38-JORDI

Jordi Morgan, photo contributed

Morgan says the barriers go beyond “business” to impact workers directly. He says that “A CFIB report released last year highlighted barriers in the area of skilled trades.   Of all the trades certified in Atlantic Canada, there is not a single example of apprenticeship requirements being the same in all four provinces.”

It makes no sense for Canada to provide greater benefits to our trading partners than to companies, workers and consumers within our country.

-John Manley, President and CEO, Canadian Council of Chief Executives, June 17, 2014

Preview of your graph

percentage of income going to top 10% of earners per province/territory

But Canadians need to be realistic.  What if we’re not talking about beer, but pesticides, fracking, or chemical waste?  Should any province be forced to do what others are doing, if it hurts their bottom line?   There will always be exceptions. Finding a happy medium may prove to be a gargantuan task.

Pedigree or patronage – are political appointments fair game or foul play?

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A look behind the 2009-2010 hiring debacle at Enterprise Cape Breton Corp.

2013-06-18-09-16-20-photo_1956335_resize

photo credit: Reuters/Canadian Press

John Lynn, CEO of Enterprise Cape Breton Corporation (ECBC) may have been set up to fail.  But the ambiguous wording in one paragraph of public sector integrity commissioner Mario Dion’s 2014 Report into Lynn’s “inappropriate” hiring practices at ECBC shows that Lynn may have had reason to believe he was acting within his mandate.

Lynn was appointed Chief Executive Officer of ECBC by long-time friend, Peter MacKay, through a 2008 Order in Council.  MacKay was then Minister for ACOA which oversees ECBC.  Lynn was a constituent of MacKay’s Pictou-Antigonish-Guysborough riding.

He probably did not foresee his very public firing in 2014.

highways-map3

Controversial hires

It was a twisted web Lynn wove and it smacked of patronage.  The four executives hired by Lynn at ECBC in 2009 were Ken Langley, a former chief of staff to former Nova Scotia premier John Buchanan (of the Nova Scotia Progressive Conservative Party); Allan Murphy, who ran for the Conservatives in 2011 and was former chief of staff to Peter MacKay; Robert MacLean, a former executive assistant to Cecil Clark when Clark was a Progressive Conservative member of the Nova Scotia government; and Nancy Baker, who worked for Peter MacKay when he was Minister for ACOA.

The investigation

The investigation into Lynn’s hiring practices at ECBC was initiated by the federal Liberal Atlantic caucus which accused the Conservatives and ECBC of blatant patronage in its appointment of its four executive officers.

Liberal MP for Cape Breton-Canso, Rodger Cuzner, says his party also called for a second investigation into Conservative hiring practices by the Public Service Commission, to ensure ”all public servants must act with integrity and accountability and be perceived as doing so”.

Dion released his Report in May, 2014.  

 

Dion found that ”relating to Mr. John Lynn, the Chief Executive Officer of the [ECBC], I found that although Mr. Lynn had the authority to appoint four individuals without a formal process that he nonetheless seriously breached ECBC’s own code of conduct which resulted in my making this finding of wrongdoing.”

Dion called the ”Conservative political pedigrees” of the four executives “noteworthy”.   All four had “undeniable links to the Conservative Party” and MacKay – though no fault was found by the commission on MacKay’s part.

In a strongly worded report, Dion said that “Mr. Lynn’s actions were not only unfair but also improper, and they [did]not stand up to the test of public scrutiny. Mr. Lynn seriously breached ECBC’s code of conduct…when he appointed four individuals with political ties to ECBC executive positions without demonstrating that the appointments were merit-based.”

“The unilateral hiring of these four individuals within the federal public sector by Mr. Lynn creates a perception of political patronage, and contributes to my finding of wrongdoing…”

Lynn was fired as he was hired, by Order in Council.

 

 

Baker’s job at ECBC was filled by MacKay friend, Allan Murphy.

Who is Nancy Baker?

Of the four executives hired by Lynn, Baker is the anomaly.  She finished her three-year term with ECBC and slid away unscathed into her new position as policy advisor to Justice Minister Peter MacKay.  And she didn’t have to move far: she had never left Ottawa for the lovely isle.  In fact, many people working at ECBC did not know her position existed.

The press – and federal government – have been quiet about Baker. But why the difference between her career path and the others? Being out of sight in Ottawa likely helped. As well, her job as director of government relations and advocacy for ECBC had never been advertised.  She was in essence, invisible.

Although Baker worked for MacKay at ACOA, he would not have been able to ensure her position once the ACOA file moved to New Brunswick MP Keith Ashfield in 2008.

Cuzner says “the appointment to ECBC was a safe haven for Baker until something came up in Ottawa”.

 Baker began her political career as a staffer to (then) Cumberland-Colchester-Musquodoboit Valley MP, Bill Casey, in his Ottawa office in 1993.  Baker worked briefly for the provincial Conservatives during a break in Casey’s tenure, then returned to work for him.

Nancy Baker timeline 2

Casey effuses about Baker and describes her as a “super person”.  He says she has an excellent perspective on issues, especially relating to people, and she was an astute employee who insisted that everything be done by the book.  

Casey also says Baker was well respected on the Hill and he always valued her opinion.  When interviewed, Casey refrained from commenting about the ECBC investigation and did not indicate that he had been following the story. 

Baker has a strong Conservative pedigree. Her father, Walter Baker, was a popular Member of Parliament from Grenville-Carleton (now Nepean-Carleton) in Ottawa.  He was elected to Parliament four times in 1970, 1974, 1979 and 1980.  

Walter Baker was also the impetus behind many government issues that are still debated today, in particular, the first Freedom of Information Bill (Bill C-15).   That died with the defeat of Prime Minister Joe Clark but much of Baker’s original Bill became part of the current Access to Information Act.

Baker’s career trajectory continues to soar, seemingly unmarred by the investigation into the ECBC hiring scandal.

Omission or commission?

Did the federal Conservatives word Lynn’s mandate loosely in order to distance themselves from public scrutiny?  His authority with respect to hiring practices is ambiguous.

In his report, Dion noted that Lynn did have ”the authority to appoint four individuals without a formal process…”[emphasis added]

Cuzner says it is almost impossible to hold governments accountable in these cases because “these arrangements are done with a wink and a nudge. There is never a paper trail on hiring.”

Lynn’s mandate may have been doomed from the start but in the end, he is the only player who was harshly treated by the integrity commission. The people who put him in that position walked away twice: when he hired his executives and when he was investigated.

Baker seems to be cautiously coddled within the Conservative Party family but when the situation got messy, no one had John Lynn’s back.

Despite horrific injuries, Levaquin class action suit may be stalled in Nova Scotia

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Statement of Claim (Text)
Johnson & Johnson, the US pharmaceutical giant which manufactures the potent antibiotic Levaquin, has been settling thousands of lawsuits filed against it out of court in the United States.  That is now causing uncertainty about whether a proposed class action suit against Johnson & Johnson and Levaquin (known generically as levofloxacin ) in Nova Scotia will move forward.

Wagner & Co., a class action law firm based in Halifax, has filed a Statement of Claim in the Supreme Court of Nova Scotia on behalf of clients in Atlantic Canada who have suffered possibly compensable injuries after taking Levaquin.  But the firm is also weighing the benefits of proceeding with individual cases only.

A powerful and popular drug

Levaquin was approved by the US Food and Drug Administration (FDA) in 1996 and by Health Canada in 1997.  It was heralded as a wonder drug, an antibiotic that cured infections others couldn’t.

In 2002 and 2007 the FDA insisted that all pharmaceutical companies manufacturing Levaquin place warning labels on the drug to alert doctors to possible tendonitis and tendon rupture, especially in patients over 60 years of age.

By 2008, the FDA warning had been upgraded to a black box warning, the sternest warning from the FDA that a medication can carry and still be sold in the US.

Despite the order,  Johnson & Johnson did not add labels to their product.  Not long after 2008,  lawsuits began to be filed by users of Levaquin in the US, most of whom had suffered tendon rupture.

More than 450 reports of adverse reactions have also been reported in Canada since 2008.

Side Effects

The injuries allegedly suffered as a result of taking Levaquin are clearly horrific.  They include spontaneous tendon ruptures, tendonitis and retinal damage, usually within four to six weeks of taking Levaquin.  Many patients require invasive, possibly life-altering surgery to repair the damage.

Dr.  Judy Mader, a family physician who operates a busy practice from the Professional Building at 5991 Spring Garden Road in Halifax says Levaquin is an “excellent drug”.

Mader was surprised to learn that there was a possible class action lawsuit involving Levaquin and says she has never had a patient complain of side effects, especially  involving tendons.

mages_055A ruptured Achilles tendon/file photo

Where the lawsuits are headed now

hoto

Michael Dull, class action lawyer/ photo: Anne Calder

Michael Dull, a class action lawyer with Wagner & Co, says that lawyers in the US are not allowed to litigate pharmaceutical cases as class action suits.  Instead  they proceed as ”multi-district litigation”.   All cases from one jurisdiction fall under the management of one judge.

The opposing parties then pick two or three of their most hopeful cases from the larger group.  These cases – or “bell weather” cases – are heard in court and at the end of the process both sides should know the strengths and weaknesses of their respective positions, says Dull.

Johnson & Johnson is surprisingly quiet in its financial statements and on its website about lawsuits, including Levaquin.

However, Bloomberg reported recently that “in a filing in federal court, the drug maker said it had agreed to settle, for an undisclosed sum, 845 of the legal actions brought by patients who claimed the drug maker didn’t do enough to warn about the dangers of antibiotic Levaquin, which has been tied to tendon problems. It is in negotiations to settle another 190 of the cases.”

US courts also allow pharmaceutical companies to use the defence that their failure to warn physicians of the possible side effects of taking Levaquin would not have made a material difference if the physician had been warned, a defense that is not available in

This defense favours the pharmaceutical companies and for that reason, many settlements in the US have been marginal.   Dull says drug companies tend to fight these cases and spend millions of dollars on legal fees, rather than chance paying individual awards, which in the US tend to be large.

In the US in 2013, the Minneapolis District Court alone had 1,879 cases filed against Johnson & Johnson with respect to Levaquin.  Of these, 1182 were settled out of court by the company and 153 were still in negotiations.

There were also 1228 active cases in New Jersey, 898  due for dismissal because of  settlement.

Johnson & Johnson is surprisingly quiet in its financial statements and its website about its various lawsuits, including Levaquin.   Bloomberg reported that “in a filing in federal court, the drugmaker said it had agreed to settle, for an undisclosed sum, 845 of the legal actions brought by patients who claimed the drug maker didn’t do enough to warn about the dangers of antibiotic Levaquin, which has been tied to tendon problems. It [the company] said it is in negotiations to settle another 190 of the cases.”

What this means for litigation in Nova Scotia

Statement of Claim (PDF)

Dull says approximately 30 people have contacted his firm and he believes that roughly half of them have a compensable injury.  Nearly all involve tendon ruptures or tendonitis in clients in their fifties or sixties.

But Wagner & Co. is also weighing the benefits of proceeding on an individual basis for a small number of clients who have suffered the most serious injuries and have the strongest cases, in the hope of receiving more appropriate compensation if they are successful.  The full extent of their losses are individually assessed in those cases and awards are generally much more beneficial.

Although Dull believes his firm has the makings of a strong class action suit, he says that the US settlements have tempered some of the enthusiasm in Canada and Wagner & Co. has yet to determine if the class action suit will proceed.

Dull explains that class action suits are more the norm in pharmaceutical cases in Canada because the cost of experts’ fees, and hiring one lawyer just to peruse millions of pages of documents about a drug’s development is normally just not going to happen.  A lawyer or law firm will not do that much work for say, a percentage of an $80,000 settlement. But they likely will if they can get a percentage of 80,000 people who are potentially worth that much money.

Dull believes his firm has the makings of a good class action suit,but he says there is no doubt that the US settlements have tempered the enthusiasm in Canada and Wagner & Co. has yet to determine if the class action suit will go forward.