Date: 20000110
Docket: A-427-98
CORAM: STONE J.A.
LÉTOURNEAU J.A.
MALONE J.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Appellant
- and -
IOANNIS SARVANIS
Respondent
Heard at Toronto, Ontario, Monday, January 10, 2000
Judgment delivered at Toronto, Ontario on Monday, January 10, 2000
REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A.
Date: 20000110
Docket: A-427-98
CORAM: STONE J.A.
LÉTOURNEAU J.A.
MALONE J.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Appellant
IOANNIS SARVANIS
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Monday, January 10, 2000)
MALONE J.A.
This is an appeal from an order of the Trial Division dismissing the Appellant's motion for summary judgment under the former rules of the Court. The issue before us is whether the learned Motions Judge erred in finding that disability benefits paid under the Canada Pension Plan1 ("CPP") are not a "pension" or "compensation" within section 9 of the Crown Liability and Proceedings Act,2. His decision was rendered on the basis that the disability pension was not paid in respect of the injury, damage or loss in respect of which the Respondent based his claim against the Crown.
Briefly, the facts are as follows. On June 16, 1992 the Respondent was an inmate in a federal penitentiary at Joyceville, Ontario. While working in a hay barn at that institution he fell through a trap door covered with hay and suffered permanent injury. Two months later the within action was commenced for the injuries based on alleged negligence on the part of Crown servants. As a result of these same injuries the Respondent applied for and has received disability benefits under section 44 of the CPP. Such amounts have been paid out of the Consolidated Revenue Fund and have been charged to the Canada Pension Plan Account.
In its defence the Crown now pleads section 9 of the Crown Liability and Proceedings Act which reads as follows:
9. No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.
9. Ni l'État ni ses préposés ne sont susceptibles de poursuites pour toute perte - notamment décès, blessures ou dommages - ouvrant droit au paiement d'une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l'État.
Following the interpretation of the words "in respect of" by Supreme Court of Canada in Nowegijick v. The Queen3, this Court in Langille v. Canada (Minister of Agriculture)4 afforded section 9 of the Crown Liability and Proceedings Act a broad interpretation. Similarly, the Ontario Court of Appeal has followed the principle set out in the Langille decision in Vona v. Canada (Minister of Agriculture)5 in its interpretation of section 9. Therefore, based on the broad interpretation of the phrase "in respect of" by all three Courts, the Crown argues that section 9 creates an absolute bar to the litigation as the disability pension and this cause of action arise from the same incident and injuries.
Counsel for the Respondent argues that, unlike other federal legislation such as the Government Employees' Compensation Act6 and Pension Act7, there is no provision in the CPP which specifically bars the right to bring an action against the Crown in respect of the injury which gave rise to the pension benefits paid. Accordingly this omission indicates a parliamentary intention not to exclude Crown liability.
In refusing summary judgment the Motions Judge found that there were genuine issues for trial surrounding the applicability of section 9. As we understand his reasons, he found that there were two ways in which one could argue that a CPP disability pension is not paid in respect of the injury, loss or damage being sued on. The first is that the disability pension does not compensate the same kinds of damages as do tort damages. The second is that CPP benefits are paid under a statutory framework that is not based on injury.
We are not persuaded that the first issue identified by the Motions Judge raises a genuine issue for trial. Section 9 covers both compensation and pension whether the payment of a pension is meant to fully compensate or not. Therefore, it is irrelevant that the disability payments received by the Respondent are not indemnity payments.
Nor are we persuaded that the second argument represents a genuine issue for trial. In our view, despite the factual differences, the interpretation placed on section 9 by this Court in Langille, supra, would appear to be equally applicable here. As was noted in that case, section 9 is very broadly framed. In our view, the "pension" in this case was paid out of the Consolidated Revenue Fund "in respect of" the injury sustained by the Respondent on June 16, 1992. Indeed, in his own application for the CPP disability pension the Respondent identified the cause of this injury as the accident which he suffered on that date.8
The appeal will be allowed and the order of the Motions Judge will be set aside. The Appellant"s motion for summary judgment will be granted and the Respondent"s action will be dismissed with costs.
"B. Malone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: HER MAJESTY THE QUEEN IN RIGHT OF CANADA |
Appellant
Respondent
DATE OF HEARING: MONDAY, JANUARY 10, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: MALONE J.A. |
Delivered at Toronto, Ontario on Monday, January 10, 2000
APPEARANCES: Mr. Christopher Rupar
Mr. David R. Tenszen
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
Barristers & Solicitors
390 Bay Street
FEDERAL COURT OF APPEAL
Date: 20000110
Docket: A-427-98
BETWEEN:
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA |
Appellant
Respondent
__________________
1 R.S.C. 1985, c. C-5.
2 R.S.C., 1985, c. C-50.
3 [1983] 1 S.C.R. 29">[1983] 1 S.C.R. 29.
4 [1992] 2 F.C. 208.
5 (1996) 30 O.R. (3d) 687.
6 R.S.C. 1985 c. G-5.
7 R.S.C. 1985 c. P-6.
8 Appeal Book, at p. 66.
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