Supreme Court of Canada
Miller v. Hamilton Police Benefit Fund, (1898) 28 S.C.R. 475
Date: 1898-05-14
Eliza Miller and Others (Plaintiffs) Appellants;
and
The Hamilton Police Benefit Fund and Others (Defendants) Respondents.
1898: March 5; 1898: May 14.
Present: Taschereau, Gwynne, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Benefit association—Rules—Construction—Suspension of payment—53 V. c. 39 (Ont.).
In 1889 the Police Force of Hamilton established a Benefit Fund to provide for a gratuity to any member resigning or being incapacitated from length of service or injury, and to the family of any member dying in the service. Each member of the force contributed a percentage of his pay for the purposes of the fund, and one of the rules provided as follows: “No money to be drawn from the fund for any purpose whatever until it reach the sum of eight thousand ($8,000) dollars” * * *
Held, that in case of a member of the force dying before the fund reached the said sum the gratuity to his family was merely suspended and was payable as soon as that amount was realized.
APPEAL from the decision of the Court of Appeal for Ontario reversing the judgment of the Divisional Court in favour of the plaintiffs.
This was an action brought on the 27th March, 1895, by the widow and children of George Miller, deceased, against the Hamilton Police Benefit Fund, a society incorporated by that name under the Benevolent Society’s Act, R.S.O. (1887) ch. 172, as amended by 53 Vict. ch. 39, sec. 9, and A.D. Stewart, John Muir and G.F. Jelfs, the Hamilton Police Commissioners. The relief sought is the payment of the proportion of the share of a certain benefit fund to which it is alleged that the plaintiffs have become entitled as wife and children
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respectively of the deceased. In the alternative it is asked that the incorporation of the defendants may be “cancelled” and the benefit fund distributed among those who may be found to be beneficiaries under the direction of the court.
The deceased, George Miller, became a member of the Hamilton police force about the month of September, 1869, and so continued until the time of his death on the 25th October, 1891, In September, 1890, when the salaries of the members of the force were about to be increased, it was resolved by the Commissioners that a Police Benefit Fund should be established for the purpose of providing pensions, gratuities, etc., and in case of long service, illness, death, etc., and on the 21st October the members of the force, including the deceased Miller, signed the following declaration:
“We, the undersigned members of the Police Force of the city of Hamilton, in consideration of our salaries being increased by the Board of Police Commissioners, do hereby agree to allow three per cent of our salaries to be retained monthly by the City Treasurer, for the purpose of forming a Police Benefit Fund.”
The city corporation were the paymasters of the force. Rules and regulations for the management of the fund were adopted by the committee of management in October, 1890, and approved by the Commissioners on the 8th December, 1890, though the fund appears to have been maintained in the manner contemplated from the time of its institution in the previous year. The rules of the society in force at Miller’s death, and necessary to be considered, are:—
RULE 2. “The object of this fund shall be to grant gratuities and pensions for long service in the force, and to assist members of the force who may be disabled in the actual execution of their duty, or incapacitated from duty by long sickness, and to make
[Page 477]
provision for old age, and for families in case of death.”
RULE 3. “The Police Benefit Fund shall be under the management and control of a committee subject to the approval of the Board of Commissioners, which shall be called the Benefit Fund Committee.”
RULE 12. “Every application for a pension gratuity or aid, must come before the committee when the whole circumstances of the case will be fully gone into, and a report sent in for the sanction of the Board of Police Commissioners, and in case of differences between the committee and the commissioners, the committee shall be heard in person by the commissioners, and if possible concurrence arrived at, but in the case of failure to concur, the judgment or decision of the Police Commissioners shall be final.”
RULE 15. “The Board of Police Commissioners to contribute all moneys at their disposal now or hereafter which may be legitimately applied to the fund.”
RULE 16. “All the members of the force to contribute 3 per cent of the gross amount of their pay monthly towards the fund.”
RULE 17. “The percentage to be deducted on the pay sheets in like manner as any other stoppage, and to be paid over monthly in a lump sum to the treasurer of the fund.”
RULE 18. “The Chief Constable shall be treasurer of the fund, but no money shall be paid out of the said fund unless ordered by the committee and sanctioned by the chairman of the Board of Police Commissioners.”
RULE 23. “In estimating the length of service, members who were on the force previous to the 1st of January, 1890, are entitled respectively to reckon two-thirds of the period of their service anterior to the above date.”
[Page 478]
RULE 24. “Old scale, which shall only apply to members who have joined the force before the 1st of January, 1890,”—and by sub-section 9 of Rule 24, it is provided as follows:
IX. Any member dying in the service, his widow, child or children, shall receive an allowance according to the following scale:
1 years’ service.................... $ 250 00
2 years’ service.................... 300 00
3 years’ service.................... 350 00
4 years’ service.................... 400 00
5 years’ service.................... 450 00
6 years’ service, and upwards, one and one-half month’s pay for each year’s service, but in the event of a member dying unmarried and without issue, his heirs shall receive an allowance granted in such cases on a report of the committee, and sanction or approval of the Police Commissioners.”
[That part of the rule relating to the “New Scale” applies only to members joining the force from and after the 1st January, 1890.]
RULE 25. “No money is to be drawn from the fund for any purpose whatever until it reaches the sum of eight thousand (8,000) dollars, unless in certain cases, such as members disabled in the execution of their duty, or in case of death, to be considered and reported on by the committee and sanctioned by the Board of Police Commissioners as aforesaid.”
The plaintiffs say that the number of years’ service of Mr. George Miller in respect of which they are entitled to receive allowance and payment, is two-thirds of his period of service, prior to the 1st January, 1890, viz., thirteen and a half years, and subsequent thereto the full period until his death, one and five-sixth years; the amount of such allowance estimated under rule 24, clause 9, being at the rate of one and a half months
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pay for each year’s service, in all $1,294.27. This sum they claim to be legally entitled to under the rules and regulations of the society.
The defendants, on the other hand, contended
(1) That the granting of the allowance is not as of right but depends, under rule 12, upon the report of the Committee and sanction of the Police Commissioners, authorizing it after consideration of the whole circumstances of each particular case:
(2) That the amount of the fund at the death of George Miller having been no more than $2,485, the only sum to which the plaintiffs could under any circumstances be entitled, was that reported on by the committee and sanctioned by the Police Commissioners under rule 25, viz., $175.
The defendants also contended that the fund was illegally constituted, the provisions of the Ontario Benevolent Societies Act, R.S.O. (1887) ch. 172 not having been complied with.
The trial judge, Mr. Justice Rose, held that plaintiffs were only entitled to the sum awarded by the Police Commissioners under rule 12, namely, $175, and gave judgment for that amount. The Divisional Court held them entitled to the allowance according to the scale in rule 24, and that payment of this amount was only supended while the fund was under $8,000. It also held that the fund was properly constituted, not being affected by the Act relating to Benevolent Societies, or by the Ontario Insurance Act.
In the Court of Appeal the judgment of the Divisional Court was reversed and that of the trial judge restored. From this judgment the plaintiffs appealed to this court.
Watson Q.C. for the appellants.
Teetzel Q.C. for the respondents.
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The judgment of the court was delivered by
SEDGEWICK J.—We are of opinion that this appeal should be allowed and the judgment of the Divisional Court restored. We have been unable to come to the conclusion that the rules governing the fund in question provide that there shall be no liability whether prospective or in presenti against the fund in case of death, etc., until the fund reached $8,000. Rule 25 indicates that there should be a postponement only of payment. No matter what the intention of the founders of the fund may have been, and there are strong reasons to suppose that their intentions were, as is claimed by the respondents, that intention has in no way been manifested in the rules themselves, and we do not feel it proper to read between the lines or import words into them giving them a construction of which they are not susceptible.
The question of the construction of the Ontario Insurance Act as amended by 53 Victoria, Ch. 39, was disposed of at the argument. We do not think that there is anything in the statute which affects the right of the appellants to payment out of the fund. The appeal is allowed with costs, and the appellants will be entitled to their costs in all the courts below.
Appeal allowed with costs.
Solicitor for the appellants: Thomas C. Haslett.
Solicitors for the respondents: Teetzel & Harrison.
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