Date: 20030217
Docket: A-29-02
Neutral citation: 2003 FCA 86
CORAM: RICHARD C.J.
DESJARDINS J.A.
ROTHSTEIN J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
ROBERT CARTER
Respondent
Heard at Ottawa, Ontario, on February 12, 2003.
Judgment delivered at Ottawa, Ontario, on February 17, 2003.
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: RICHARD C.J.
DESJARDINS J.A.
Date: 20030217
Docket: A-29-02
Neutral citation: 2003 FCA 86
CORAM: RICHARD C.J.
DESJARDINS J.A.
ROTHSTEIN J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
ROBERT CARTER
Respondent
REASONS FOR JUDGMENT
ROTHSTEIN J.A.
ISSUE
[1] The primary issue in this appeal is whether the "insurance exception" applies to entitle the respondent Robert Carter to both wages and pension benefits for the period during which the Canadian Armed Forces (CAF) discriminated against him on account of age.
FACTS
[2] Mr. Carter was employed by the CAF as a master corporal. On May 27, 1992, having reached the compulsory retirement age provided for under the Queen's Regulations and Orders for the Canadian Forces (QR & Os), he was released from his employment. On August 14, 1992, a Canadian Human Rights Tribunal issued its decision in Martin et al. v. CAF (1992), 17 C.H.R.R. D/435 (C.H.R.T.), holding that the QR & Os prescribing compulsory retirement ages did not constitute regulations for the purposes of 15(1)(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, and, accordingly, could not justify the discriminatory practice of compulsory retirement.
[3] On September 3, 1992, as a direct consequence of the Martin decision, the QR & Os were amended to comply with paragraph 15(1)(b), thereby rendering the compulsory retirement provisions operative from that date forward.
[4] On August 25, 1993, Mr. Carter filed a complaint with the Canadian Human Rights Commission (the Commission) against the CAF, alleging that his compulsory retirement constituted discrimination on the basis of age. The complaint was referred to a Tribunal. At the outset of the hearing before the Tribunal, the CAF conceded that the release of Mr. Carter on May 27, 1992, was discriminatory on account of age. Therefore, the only issues before the Tribunal were related to compensation.
[5] The parties are agreed that the relevant time period is May 27, 1992 to September 2, 1992. That is the period commencing with the date of Mr. Carter's release and ending on the date that the compulsory retirement provisions of the QR & Os were brought into conformity with paragraph 15(1)(b) of the Act.
[6] The major issue is whether Mr. Carter should be able to retain the pension income he received, in the relevant period, $5,521, in addition to being awarded $9,487 which represents the salary he would have earned had he not been released on May 27, 1992. A second issue is whether a discount should be taken into account to recognize the early receipt of severance pay by Mr. Carter on May 27, 1992, rather than on September 2, 1992. The amount involved is a reduction of $452 in his severance pay.
[7] The Tribunal awarded Mr. Carter his salary of $9,487 without deducting the pension income of $5,521 that he had already received. It also did not discount his severance.
[8] The Trial Division allowed the judicial review on the issues of pension income and severance pay. The effect was the deduction of the pension income Mr. Carter received from the compensation award and the recognition of the fact that he received his severance pay three months earlier than would be the case had he remained employed until September 2, 1992.
[9] The parties are agreed that, had he been working, Mr. Carter would have made contributions to his superannuation pension for the period between May 27, 1992, and September 2, 1992, resulting in an increased present value of his pension on September 2, 1992, of $6,283. The Tribunal took this increased present value into account in its award and this was not disturbed on judicial review.
[10] Reconciliation of the amount of the Tribunal's award with the effect of the decision of the Trial Division is as follows:
Award by Tribunal as at September 2, 1992
Salary $ 9,487
Increased present value of pension $ 6,283
Total award by Tribunal $ 15,770
Adjustments on Judicial Review
Deduct pension income $ 5,521
Deduct discount for early
receipt of severance pay $ 452
Total deductions $ 5,973
Award resulting from decision of
Trial Division as at September 2, 1992 $ 9,797
PENSION INCOME
[11] In order to keep Mr. Carter whole, it is apparent that the award for the period May 27, 1992 to September 2, 1992, should be the difference between the pension income he received and the salary he would have received had he not been released early. Mr. Carter's position is that he should have been working and not receiving pension income. That means that during the relevant period, he should have received his salary of $9,487 and not his pension income of $5,521.
[12] However, the Commission says that this is a case in which the "insurance exception" should apply. The Commission explains that the insurance exception, which originated in the area of tort law, is an exception to the rule against double recovery. The basis is that a tortfeasor ought not to benefit from a plan of insurance paid for by the victim as a result of his or her prudence and forethought. In Cunningham v. Wheeler; Cooper v. Miller; Shanks v. McNee, [1994] 1. S.C.R. 359, Cory J. states at paragraph 83:
I can see no reason why a tortfeasor should benefit from the sacrifices made by a plaintiff in obtaining an insurance policy to provide for lost wages. Tort recovery is based on some wrongdoing. It makes little sense for a wrongdoer to benefit from the private act of forethought and sacrifice of the plaintiff.
[13] The Commission argues that the Supreme Court has recognized that the insurance exception applies to pension benefits. In [1979] 2 S.C.R. 756">Guy v. Trizec Equities Ltd., [1979] 2 S.C.R. 756, Ritchie J. states at page 762:
... I am unable to share the opinion that the pension benefits should be deducted in the manner proposed because I take the view that this contributory pension is derived from the appellant's contract with his employer and that the payments made pursuant to it are akin to payments under an insurance policy.
[14] Finally, the Commission says that the same rules should apply to an award by a human rights tribunal as to an award of damages by a court for tortious liability. In Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401, Marceau J.A. stated at page 414:
While the particular nature of the human rights legislation ... renders unjustifiable the importation of the limitations to the right to obtain compensation applicable in tort law, the assessment of the damages recoverable by a victim cannot be governed by different rules. In both fields, the goal is exactly the same: make the victim whole for the damage caused by the act source of liability. Any other goal would simply lead to an unjust enrichment and a parallel unjust impoverishment. The principles developed by the courts to achieve that goal in dealing with tort liability are therefore necessarily applicable.
[15] The respondent Attorney General argues that the Canadian Forces Superannuation Act, R.S.C. 1985, c. C-17, precludes application of the insurance exception in this case. The argument is that an individual can either be a contributor or a beneficiary under the Canadian Forces Superannuation Act, but not both. Therefore, either Mr. Carter was a contributor from May 27, 1992 to September 2, 1992, or he was a beneficiary during that period. As his argument is that he should have been working and, thereby, contributing to his pension, the pension income that he received should be deducted from the salary awarded to him for that period.
[16] In my opinion, the Attorney General must succeed in this argument. Pursuant to subsection 4(1) of the Canadian Forces Superannuation Act, benefits are payable only when an individual ceases to be a member of the regular force. Subsection 4(1) provides:
| 4. (1) Subject to this Act, an annuity or other benefit hereinafter specified shall be paid to or in respect of every person who, being required to contribute to the Superannuation Account in accordance with this Act, ceases to be a member of the regular force or dies, and that annuity or other benefit shall, subject to this Act, be based on the number of years of pensionable service to the credit of that person.
|
4. (1) Sous réserve des autres dispositions de la présente loi, une annuité ou autre prestation ci-après spécifiée est versée à toute personne - ou à l'égard de celle-ci - qui, étant tenue de contribuer au compte de pension de retraite d'après la présente loi, cesse d'être membre de la force régulière ou meurt. Cette annuité ou autre prestation repose, sous réserve des autres dispositions de la présente loi, sur le nombre d'années de service ouvrant droit à pension au crédit de cette personne.
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[17] Members of the regular force are required to contribute to the Superannuation Account. Subsection 5(1) provides in part:
| 5. (1) Every member of the regular force ... is required to contribute to the Superannuation Account ...
|
5. (1) ... tout membre de la force régulière ... est tenu de payer au compte de pension de retraite ...
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[18] Section 16 provides that a contributor, having reached retirement age, ceases to be a member of the regular force and is entitled to a pension benefit. Section 16 provides in part:
| 16. A contributor who, having reached retirement age, ceases to be a member of the regular force for any reason other than a reason described in subsection 18(1) or (4) is entitled to a benefit determined as follows:
...
|
16. Un contributeur qui, après avoir atteint l'âge de retraite, cesse d'être membre de la force régulière pour toute raison autre qu'une raison mentionnée au paragraphe 18(1) ou (4) a droit à une prestation déterminée comme suit_
...
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[19] It is apparent, from the scheme of the Canadian Forces Superannuation Act, that a person who makes contributions to the Superannuation Account must be a member of the regular force. A person who receives a pension benefit must have ceased to be a member of the regular force. Therefore, an individual to which section 16 applies cannot receive salary and pension income at the same time.
[20] If the insurance exception were applicable to awards by human rights tribunals, and I need not decide that issue, Mr. Carter would be entitled to both salary and pension income. However, the Canadian Forces Superannuation Act precludes that eventuality in this case. In effect, by making his complaint, Mr. Carter has elected to be treated as a member of the regular force between May 27, 1992 and September 2, 1992 and as such, he is entitled to his salary for that period. In addition, as a member of the regular force, he is required to contribute to the Superannuation Account, thereby increasing the present value of his pension by $6,283 as at September 2, 1992. However, having made that election, he cannot be treated as a member of the regular force and be entitled to pension income. Whatever may be the applicability of the insurance exception in other human rights cases, in this case, its application is ousted by statute.
SEVERANCE PAY
[21] The only issue here is whether the amount of $452 should be deducted from the severance pay received by Mr. Carter because he received it on May 27, 1992, rather than on September 2, 1992. The $452 represents a discount to recognize the receipt of the severance pay three months earlier than when it was actually due.
[22] While the Commission argues that this should also be a matter for application of the insurance exception, I am unable to agree. This is not a matter of a complainant being entitled to double compensation or a tortfeasor benefiting from some insurance or other contract for benefits that an individual may have obtained. This is simply a matter of calculating, using actuarial methodology, the severance pay to which Mr. Carter is entitled at the time he became entitled to it. I do not understand the insurance exception to justify departure from actuarial methodology when that is the method used to calculate compensation as of a specified date.
CONCLUSION
[23] For these reasons, I would dismiss the appeal.
"Marshall Rothstein"
J.A.
"I concur
J. Richard C.J."
"I concur
Alice Desjardins J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-29-02
STYLE OF CAUSE: Canadian Human Rights Commission v. Attorney General of Canada et al
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 12, 2003
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: RICHARD C.J.
DESJARDINS J.A.
DATED: February 17, 2003
APPEARANCES:
Mr. Philippe Dufresne FOR THE APPELLANT
Mr. Daniel Pagowski
Mr. Brian J. Saunders FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Canadian Human Rights Commission FOR THE APPELLANT
Ottawa, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada
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