Kailey Sutton Photo
Kailey Sutton Photo
Kailey Sutton Photo

Kailey Sutton maintains a growing practice focused on municipal law, land use planning, construction and development. She represents and advises the full range of stakeholders in construction and infrastructure, including owners, developers, ratepayers, municipalities, contractors and consultants. Kailey’s practice also engages the concepts of ESG (Environmental, Social and Governance), PropTech (Property Technology), and ConTech (Construction Technology) where possible.

Experienced in obtaining front-end approvals and permitting for development and construction, Kailey assists her clients on various forms of approvals, including official plan amendments, rezonings, severances, minor variances, plans of subdivision and site plan approvals. She also provides advice on expropriation proceedings, Ontario Heritage Act and Building Code matters, as well as by-law and regulatory compliance issues. Kailey frequently appears and makes submissions before municipal councils and committees of adjustment, the Ontario Land Tribunal (formerly the Local Planning Appeal Tribunal and Ontario Municipal Board), the Toronto Local Appeal Body, and Provincial Offences Court.

Kailey’s experience includes drafting and negotiating complex construction and development agreements, including custom-drafted and standard form construction contracts; master supply agreements; operation and maintenance agreements; teaming agreements; crane swing, tie-back and shoring agreements; and section 37 agreements. She has acted on matters relating to real estate portfolio acquisitions, low- and high-rise residential and condominium developments, university and hospital developments, industrial facilities, public-private partnership (P3) infrastructure, renewable energy projects and art installations.

As a former insurance broker and adjuster, Kailey offers significant expertise in risk management and allocation, mediation, negotiation and settlement.

Kailey is a member of the Urban Land Institute’s Program Committee and the Building Industry and Land Development Organization, a member at large on the Ontario Bar Association’s Municipal Law Section Executive, and a frequent author and panellist on development and construction law matters.



Representative Matters

Construction Matters:

  • Drafted & negotiated numerous construction contracts and provided advice pursuant to numerous construction contracts for new and existing clients including: Institutional and other owner clients, developers, engineers and architects, contractors, and trades
  • Assisted the Ontario Association of Architects (OAA) with updating its industry standard form OAA 600 contract for architect’s services and OAA 900 contract for subconsultant’s services.
  • Assisted the Association of Consulting Engineering Companies – Ontario (ACEC-ON) with updating its industry standard form Client/Engineer Agreement for Professional Consulting Services in partnership with the Municipal Engineers Association (MEA).
  • Acted for affiliate of Dream Unlimited to draft and negotiate construction management (CCDC 5B) contracts for construction of residential and commercial buildings on certain blocks located in both Ontario and Quebec forming part of Dream’s Zibi Project – a complex 34-acre master planned community involving development of shoreline and islands on the Ottawa River located in Ottawa, Ontario and Gatineau, Quebec.
  • Retained by an Ontario municipality to prepare a custom-drafted stipulated price contract for use in construction of a new recreational facility and to otherwise provide support during the procurement process for and construction of the project.
  • Acted for The Hospital for Sick Children for the drafting and negotiation of various construction contracts.
  • Acted for Mattamy Homes Limited in the drafting and negotiation of the construction contracts and related agreements necessary for construction of sustainable residential developments including incorporation of a geothermal energy system.
  • Acted for Westbank Projects Corp. for the drafting and negotiation of CCDC 5A, CCDC 17 and other associated contracts.
  • Acted for Timbercreek Asset Management Inc. in the drafting and negotiation of development and construction contracts, including development agreements, cost sharing agreements, and CCDC contracts, for use on various residential development projects across Canada.
  • Acted for an architectural firm in the drafting and negotiation of consultant agreements for the provision of design services for various mixed use development projects in Ontario.
  • Acted for Magna International Inc. in the preparation of template construction contracts, including CCDC 5B contracts, for use on their projects in Canada.
  • Acted for a Canadian cold storage and refrigerated food storage company in the drafting and negotiation of a CCDC 2 contract for construction of a new cold storage facility.Acted for a large Canadian rooftop solar company for the drafting and negotiation of Master Equipment Supply Agreements (e.g., PV modules, racking and inverters), Design-Build Agreements, and Operation and Maintenance Agreements for many solar projects.
  • Assisted in the preparation of template construction contracts, including CCDC 5B contracts, for use by large Canadian Bank on their Canadian projects
  • Advised designer on Design Services Consulting Agreement in respect of P3 courthouse construction project
  • Assisted in drafting and negotiating Design Services Agreement between joint venture and designer in respect of P3 transportation infrastructure project as part of successful bid package
  • Advised service provider on drafting and negotiation of Services Agreement for Water Treatment Facility
  • Advised large residential developer on Environmental Assessment Consultant Agreement and assisted in negotiation with consultant in satisfaction of municipal requirement
  • Prepared Master Services Agreement and related Professional Services Agreement for large residential developer for use in relation to project with ongoing service obligations
  • Advised owner-client on drafting and negotiation of Access Road, Crane Swing and Shoring Agreement against developer-neighbour with respect to development of long-term care facility
  • Advised large industrial manufacturing owner-client on drafting  and negotiation of various construction management agreements, draft template contract agreements and supplementary conditions, respecting renovation and construction of various industrial premises;
  • Advised large residential owner-client on drafting  and negotiation of Services Agreement for installation and dismantling of large temporary art exhibit; drafting event contract for use of same exhibit
  • Assisted in drafting joint venture agreement respecting development of education centre located internationally
  • Provided engineering firm claimant-client with discreet advice respecting navigating the adjudication process under the Construction Act, through which they ultimately secured a decision entitling payment in full plus interest

Municipal & Land Use Planning Matters:

  • Assist in representing and advising  various owners with respect to various appeals of city-initiated official plan and zoning by-law amendments, including appeals in respect of:
    • City of Toronto Official Plan Amendment No. 231 re: Employment Areas Lands;
    • City of Toronto Official Plan Amendment No. 352 re: Tall Buildings Guideline;
    • City of Toronto City-Wide Comprehensive Zoning By-law No. 569-2013;
    • City of Toronto By-law No. 1111-2017 re: King-Spadina Heritage Conservation District;
    • City of Toronto Official Plan Amendment No. 406 re: Downtown Secondary Plan;
    • City of Toronto Official Plan Amendment No. 486 re: King-Spadina Secondary Plan;
    • City of Mississauga Official Plan;
    • City of Vaughan Official Plan (2010);
    • City of Vaughan Official Plan Amendment re: Yonge Steeles Corridor Secondary Plan;
    • City of Vaughan Official Plan Amendment re: Vaughan Mills Corridor Secondary Plan;
  • Advise clients with respect to zoning by-law and sign by-law requirements and compliance therewith, including, for example:
    • Conduct zoning by-law analyses for acquisition of large portfolio of properties located in the City of Ottawa;
    • Conduct zoning by-law analysis for various financial institutions respecting the opening of new branch locations;
  • Assist in representing and advising various individual and developer clients in respect of applications for site-specific planning permissions, including:
    • Successfully assisting with representing various owner-clients in respect of applications for minor variance and severance at the Toronto Local Appeal Body; official plan amendments, and rezonings;
    • Successful opposition on behalf of large owner-client of appeal of approval of Zoning By-law Amendment, and successfully negotiate settlement of appeal of site plan approval;
    • Successfully represent owner-client in respect of motion to dismiss appeal by neighbour on the grounds of no valid land use planning issue raised;
  • Advise clients with respect to various issues relating to land-use entitlements, including with respect to easements and rights of way,
  • Advise clients with respect to TRCA matters including TRCA use permissions, permits and conveyances
  • Represent various owner- and tenant-clients with respect to responding to and resolving notices of violation in respect of zoning and building code matters, including negotiation of resolutions, settlements, and attending Provincial Offences Court
  • Represent various owner-clients in respect of applications for minor variance and severances, including with respect to:
    • Obtaining reciprocal easements in respect of new developments on behalf of large developer owner-client and neighbour-developer;
    • Obtaining severance (lot addition) on behalf of large industrial facility purchaser and easement over severed land benefitting vendor;
    • Advise neighbour-clients on opposition and appeal rights in respect of land use applications by neighbour-owners;

Expropriation Matters:

  • Assist in representing and advising owners and tenants with respect to various expropriation matters, including, for example:
    • Advise large commercial property owner on valuation dispute respecting taking by Metrolinx for development of additional LRT infrastructure;
    • Represent large commercial property owner in respect of dispute re: necessity of taking;
    • Represent large commercial tenant in respect of negotiating entitlement to share in compensation as against fee simple owner;

Other Matters:

  • Advise international vendor in respect of changes to regulatory regime in Ontario
  • Represent owner-client in negotiation with neighbouring developer respecting land conveyances involving complex title; review, revise and negotiate co-operation agreements with neighbouring developer; advise owner-client with respect to fulfillment of obligations to City under Section 37 Agreement and other development agreements; review, revise and negotiate reciprocal easement agreement with City
  • Advise large commercial purchaser-client on multi-million dollar purchase of stratified freehold commercial space in the City of Toronto with respect to: zoning by-law compliance, sign by-law compliance, review of development agreements respecting ongoing obligations
  • Advise large commercial purchaser-client with respect to delay claim in respect of major mixed-use development in the City of Toronto in the context of labour strike, stop work orders, and pandemic-related delays, with delay damages in the millions of dollars
  • Represent and advise client with respect to rights and permissions respecting air park use, access road allowances

 


Speaking Engagements

Responses to Select Questions from the "The Impact of COVID- 19 on the Construction Industry: McMillan Answers Your Questions" Webinar

April 3, 2020

Webinar: The Impact of COVID-19 on the Construction Industry: McMillan Answers Your Questions

March 31, 2020

Teaching Engagements

  • Adjunct Professor, ADZ School of Construction Management, George Brown College (2021) – Construction Contract Law Course

News


Media Mentions


  • Recognized by Best Lawyers in Canada (2023) as a ‘One to Watch’ in the area of Municipal Law

Directorships & Affiliations

  • Canadian Bar Association
  • Ontario Bar Association – Construction and Infrastructure Law Section
  • Ontario Bar Association – Municipal Law Section
  • Building Industry and Land Development Association (BILD)
  • Urban Land Institute (ULI), Toronto Chapter, Program Committee
  • Women’s Infrastructure Network

Education & Admissions

2017
Called to the Ontario bar
2016
JD University of Toronto
2012
MA, Criminology University of Toronto

Publications

Insights (44 Posts)

Featured Insight

News Flash: Generational Shift in Ontario’s Planning Legislation as the More Homes Built Faster Act Receives Royal Assent

As a further update to our earlier bulletins, Bill 23 has now received Royal Assent meaning that much of the More Homes Built Faster Act is in force.

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Nov 29, 2022
Featured Insight

Bill 23 Update: Revisions Proposed to Bill 23 Following Lengthy Second Reading

Ontario's most talked about piece of legislation, Bill 23, received some revisions from the Standing Committee prior to Third Reading.

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Nov 24, 2022
Featured Insight

Bill 39: The Province’s Newest Addition to the Tool Belt for Combating the Housing Crisis

In the latest move to address Ontario's housing crisis, the provincial government has proposed further changes to three key pieces of planning legislation.

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Nov 17, 2022
Featured Insight

Bill 23: The More Homes Built Faster Act, 2022, and the Proposed Amendments to the Greenbelt Plan and Oak Ridges Moraine Conservation Plan

Ontario's Provincial Government has proposed sweeping amendments to several Acts, Regulations, the Greenbelt Plan and the Oak Ridges Moraine Conservation Plan.

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Nov 16, 2022
Featured Insight

The Quick and Dirty on Ontario’s Proposed Amendments to the Excess Soil Regulation

Proposed amendments to Ontario's Excess Soil Regulation remove reuse planning requirements in low-risk projects and increase flexibility in excess soil storage.

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Nov 9, 2022
Featured Insight

Official Plan for Toronto 2051 – The Future of Toronto’s Planning and Development

Information on Toronto's invitation for landowners, residents and other stakeholders in the development industry to have their say on the next official plan.

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May 24, 2022
Featured Insight

Ontario Partially Suspends Implementation of Phase 2 of Excess Soil Regulation Until January 2023

On April 21, 2022, Ontario MECP announced temporary suspension of certain provisions in Excess Soil Regulation

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Apr 29, 2022
Featured Insight

Growth Funding Tools (“GFTs”) and the City of Toronto’s Recent Draft GFT By-laws

Growth Funding Tools (GFTs); City of Toronto publishes drafts of its new Development Charges, Community Benefits Charges, and Parkland Dedication By-laws

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Apr 20, 2022
Featured Insight

Ontario Proposes to Postpone Implementation of Phase Two of the Excess Soil Regulation

Ministry proposes to delay implementation of Phase 2 of On-Site and Excess Soil Management Regulation from Jan. 1, 2022 to Jan. 1, 2023.

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Mar 15, 2022
Featured Insight

PropTech: Property Technology, the New Frontier in Real Property, Part 3: Challenges

In this bulletin, we discuss the risks and challenges of using PropTech by businesses in the real estate space and for consumers of such products.

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Jan 18, 2022
Featured Insight

PropTech: Property Technology, the New Frontier in Real Property, Part 2: Benefits

In this bulletin, we discuss the benefits of using PropTech for businesses in the real estate space and for consumers of such products.

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Jan 11, 2022
Featured Insight

PropTech: Property Technology, the New Frontier in Real Property, Part 1: Introduction

In this 3-part series, we explain the concept of PropTech, highlight its benefits and outline associated risks.

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Jan 11, 2022
Featured Insight

City of Toronto Introduces Garden Suites

In this bulletin, we discuss the potential development of garden suites in the City of Toronto.

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Jan 10, 2022
Featured Insight

Update re: Adoption & Passing of City of Toronto Inclusionary Zoning Policy

An overview of the most recent updates to the Adoption & Passing of City of Toronto Inclusionary Zoning Policy

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Dec 21, 2021
Featured Insight

Making a Lot out of a Little – Laneway Housing a Niche Market Opportunity for Municipalities, Property Owners, Real Estate Developers and Investors

An overview of laneway suites / housing as means of adding to housing stock in Toronto and beyond.

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Oct 25, 2021
Featured Insight

Divisional Court confirms Environmental Significance of Ministerial Zoning Orders and Importance of Consultation under the Environmental Bill of Rights, 1993

Review of Divisional Court decision: Ontario’s compliance with Environmental Bill of Rights in passing Bill 197, particularly re: Ministerial Zoning Orders

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Sep 13, 2021
Featured Insight

Evidence of ESG in the Construction and Development Industry

An overview of ESG initiatives in Construction & Development; key information for those looking to implement their own ESG strategies

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Aug 18, 2021
Featured Insight

City of Toronto’s Current Municipal Comprehensive Review Process

An overview of the City of Toronto's current Municipal Comprehensive Review Process; Request for Employment Land Conversion under the City's Official Plan

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Jul 14, 2021
Featured Insight

Masters and Clergy – Is the Clergy “Principle” No More?

An overview of a recent Ontario Divisional Court decision which weighs in on the legal status of the Clergy Principle.

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Jul 7, 2021
Featured Insight

Impending Implementation of Ontario’s Inclusionary Zoning Regime in Toronto and the GTA

An overview of inclusionary zoning policies and their impending implementation in Toronto and the GTA.

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Jun 25, 2021
Featured Insight

COVID-19: July 22nd Update on the Impacts to Development Applications and Hearings

Status update (July 22, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

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Jul 22, 2020
Featured Insight

The LPAT and the New “Ontario Land Tribunals” Cluster

The New Ontario Land Tribunals Cluster and moving forward with hearings at the LPAT.

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Jul 6, 2020
Featured Insight

COVID-19: July 6th Update on the Impacts to Development Applications and Hearings

Status update (July 6, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing
applications, appeals, and municipal closures.

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Jul 6, 2020
Featured Insight

COVID-19: June 3rd Update on the Impacts to Development Applications and Hearings

Status update (June 3, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

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Jun 3, 2020
Featured Insight

COVID-19: May 20th Update on the Impacts to Development Applications and Hearings

Status update (May 20, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Read More
May 20, 2020
Featured Insight

COVID-19: May 13th Update on the Impacts to Development Applications and Hearings

Status update (May 13, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Read More
May 13, 2020
Featured Insight

COVID-19: May 6th Update on the Impacts to Development Applications and Hearings

Status update (May 6, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

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May 6, 2020
Featured Insight

COVID-19: April 22nd Update on the Impacts to Development Applications and Hearings

Status update (April 22, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Read More
Apr 22, 2020
Featured Insight

COVID-19: April 15th Update on the Impacts to Development Applications and Hearings

Status update (April 15, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

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Apr 15, 2020
Featured Insight

Project Management Amid COVID-19 – The Triage

Best practices for construction project management during the COVID-19 pandemic, and other force majeure circumstances.

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Apr 8, 2020
Featured Insight

The Impact of COVID-19 on the Construction Industry: A Reference Guide to the Changed Landscape

Contractual clauses, Permits & Inspections, Health & Safety, Labour, Litigation, Arbitration & Court Procedures,
Limitation Periods, Liens & Holdbacks

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Apr 3, 2020
Featured Insight

The Impact of COVID-19 on the Construction Industry: McMillan Answers Your Questions

This webinar will unpack and address the impacts of COVID-19 on the construction industry and how these impacts can be best managed.

Mar 31, 2020
Featured Insight

COVID-19: March 30th Update on the Impacts to Development Applications and Hearings

Status update (March 30, 2020) re: land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Read More
Mar 30, 2020
Featured Insight

COVID-19: What is the Impact on Development Applications and Hearings?

Status update re: the land use planning and municipal response to COVID-19 in Ontario; processing applications, appeals, and municipal closures.

Read More
Mar 23, 2020
Featured Insight

Province Announces Major Changes to the Rules Governing Land Development

The Ontario Government announced on Thursday, May 2, 2019 that there will again be significant changes to the Planning Act and other development-related legislation through its “More Homes, More Choices: Ontario’s Housing Supply Action Plan.”

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May 2, 2019
Featured Insight

Ontario Premier to Set Precedent Invoking Notwithstanding Clause

Superior Court Justice Edward Belobaba made a finding of unconstitutionality and struck down the provisions of the provincial Better Local Government Act, 2018

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Sep 12, 2018
Featured Insight

Ford-ward Looking at the Impacts of the Better Local Government Act, 2018

Jul 30, 2018, the Premier of Ontario tabled draft legislation to bring changes into effect to significantly reduce the number of wards in the City of Toronto.

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Aug 1, 2018
Featured Insight

Ontario Premier Doug Ford Intends to Cut Toronto City Wards from 47 to 25 for 2018 Municipal Election

Jul 30, 2018, the Premier of Ontario tabled draft legislation to bring changes into effect to significantly reduce the number of wards in the City of Toronto.

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Jul 27, 2018
Featured Insight

Think twice before obtaining a labour and material payment bond – new liability for an old security

Filing away procured labour and material payment bonds without taking proactive steps to notify claimants of the bond's existence exposes owners to claims from unpaid subcontractors

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Mar 26, 2018
Featured Insight

The WELL Building Standard

WELL Standard is a way for owners and occupants in commercial real estate to maximize returns and efficiencies through improvements to physical environment

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Jan 8, 2018
Featured Insight

Are Canadian Businesses Ready For a Cyber Attack?

Are Canadian Businesses Ready For a Cyber Attack?

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Apr 3, 2017
Featured Insight

Budget 2017: Proposed GST/HST Amendments

Budget 2017: Proposed GST/HST Amendments: GST/HST rules and are intended to level the playing field

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Mar 28, 2017
Featured Insight

Federal Jurisdiction in Municipal Matters: What Happens When the Provinces or Municipalities Step on Federal Toes?

Federal Jurisdiction in Municipal Matters: What Happens When the Provinces or Municipalities Step on Federal Toes?

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Mar 13, 2017

Deals & Cases (2 Posts)

Featured Insight

Hurontario LRT

On October 21, 2019, the Mobilinx consortium reached financial close of the CAD$4.6 Billion DBFOM contract with Infrastructure Ontario (“IO”) and Metrolinx for the Hurontario Light Rail Transit (“LRT”) Project in Ontario.

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Oct 21, 2019
Featured Insight

Ottawa’s Trillium Line South Extension

On March 29, 2019, the City of Ottawa and TransitNEXT reached financial close on the Stage 2 Trillium Line south extension, a key component of Ottawa’s C$2.366 billion Stage 2 LRT project.

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Mar 29, 2019