Date: 19980915
Docket: T-2075-92
BETWEEN:
IOANNIS SARVANIS
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER
MacKAY J.
[1] The defendant seeks orders allowing it to amend her statement of defence, and granting summary judgment dismissing the plaintiff's claim for damages arising from injuries said to have resulted from negligence of the defendant's servants.
[2] Specifically, the defendant seeks an order allowing it to amend its defence to plead s. 9 of the Crown Liability and Proceedings Act as amended1 (the "Act"), and paragraphs 42(2)(a), 44(1)(b) and 108(3)(a) of the Canada Pension Plan Act2. This amendment to the statement of defence is not opposed by the plaintiff. The motion for an order granting summary judgment, which is opposed by the plaintiff, is brought on the basis that, it is said, there is no genuine issue for trial or, alternatively, the issue for trial is a question of law capable of being determined on this motion.
Background
[3] The plaintiff, while an inmate at Pittsburgh Institution, a federal penitentiary located in Joyceville, Ontario, was injured on June 16, 1992, while working in a hay barn located at the penitentiary. The plaintiff fell, from the second to the first floor of the barn, through a trap door that had been covered with hay. He sustained numerous personal injuries, including a broken wrist, a fractured cheek bone, damage to his teeth, nerve damage, contusions and abrasions to his face, a sprain and strain of his neck and right shoulder, together with resulting anxiety and depression.
[4] In August 1992, the plaintiff served and filed a statement of claim for damages arising from the injuries he suffered, alleging negligence on the part of Her Majesty's servants. In submissions made in support of this motion, it is urged that it is probable that, if his action is sustained, he will be awarded damages up to $680,000. It is urged that he should not be deprived of the opportunity to pursue his action, since the Act does not apply to this case. The defendant served and filed a statement of defence in September 1992 in which the Act was not pleaded, but the effect of the amendment to the defence, to which the plaintiff does not object, is to plead that the plaintiff's claim is barred by the Act.
[5] As a result of the injuries sustained in the hay barn in June 1992, the plaintiff was disabled and he applied for Canada Pension Plan disability benefits. While his application was originally refused, he appealed that decision and ultimately the appeal was allowed. Disability benefits under the Canada Pension Plan Act were approved in September 1996, with benefits then paid retroactive to October 1994. To date, it is said the plaintiff has received approximately $55,000 in a combination of welfare benefits, family benefits and Canada Pension Plan disability benefits since his accident, and he may expect to receive a further $173,000 in family benefits and Canada Pension Plan disability benefits, should he remain disabled to the normal retirement age of 65 years. Payments by way of welfare or family benefits are not in issue here; the only question relates to disability benefits paid under the Canada Pension Plan Act.
[6] Under that Act benefits are paid out of the Consolidated Revenue Fund, charged to the Canada Pension Plan Account, pursuant to s. 108. A disability pension is paid to one who has contributed as required under the Act, and who is disabled (s-ss. 44(1) and (2)). Under s-s. 42(2):
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| 42. (2) For the purposes of this Act,
(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,
| (i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and |
| (ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and |
(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
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(2) Pour l'application de la présente loi_:
a) une personne n'est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d'une invalidité physique ou mentale grave et prolongée, et pour l'application du présent alinéa_:
| (i) une invalidité n'est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice, |
| (ii) une invalidité n'est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès; |
b) une personne est réputée être devenue ou avoir cessé d'être invalide à la date qui est déterminée, de la manière prescrite, être celle où elle est devenue ou a cessé d'être, selon le cas, invalide, mais en aucun cas une personne n'est réputée être devenue invalide à une date antérieure de plus de quinze mois à la date de la présentation d'une demande à l'égard de laquelle la détermination a été établie.
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[7] It is urged by the defendant that the plaintiff's disability pension payments under the Canada Pension Plan Act preclude action against the Crown in relation to the claim here advanced by reason of s. 9 of the Crown Liability and Proceedings Act.3 That provision reads:
| 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.
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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.
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[8] The defendant relies upon Langille v. Canada (Minister of Agriculture)4, a decision of the Federal Court of Appeal concerning the application of s-s. 4(1), now s. 9, of the Act. There, that decision reversed the motions judge who had declined to grant summary judgment against a claim of the plaintiffs for loss arising from destruction of animals by order of the Minister of Agriculture, which order the plaintiffs claimed was unlawful. After the destruction of the animals the plaintiffs had been paid compensation out of the Consolidated Revenue Fund, pursuant to regulations for the animals that had been destroyed. For the Court of Appeal, Mr. Justice Stone wrote5, concerning then s-s. 4(1), now s. 9, of the Act:
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Subsection 4(1) outlaws a proceeding "in respect of a claim if...compensation has been paid...out of the Consolidated Revenue Fund...in respect of...damage or loss in respect of which the claim is made". The words "in respect of" are words of very broad import. Indeed, in [1983] 1 S.C.R. 29">Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at page 39, Dickson J. (as he then was), described the same words in another federal statute in these terms: |
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The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject matters. |
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It seems to us that the broad reach of subsection 4(1) does include the damage or loss for which the respondents here claim on account of their destroyed animals. The compensation was paid "in respect of" "damage or loss" resulting from the destruction of the animals and the claim in the present action is also "in respect of" that same "damage or loss". The only difference here is that respondents, by way of this action in tort, are seeking to enhance recovery in respect of that destruction beyond the level of the compensation they were paid in 1978 out of the Consolidated Revenue Fund. In our view, subsection 4(1) of the Crown Liability Act bars them from doing so. |
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[9] The principle in Langille was followed by the Ontario Court of Appeal in Vona v. Canada (Minister of Agriculture)6 where compensation paid under the Health of Animals Act in respect of destruction of a herd of wild animals precluded a subsequent claim against the Crown in respect of the same loss. The defendant urges that it has been held consistently that a pension paid in respect of injury or loss while in military or other service of Her Majesty precludes claims against the Crown for the same injury or loss. That clearly is the case where the pension is one paid under the Pensions Act7 which by s. 111 precludes a claim for loss or injury to a person in military service who is entitled to pension benefits under that Act8. A similar situation exists where compensation is paid to a servant of the Crown in relation to injury suffered in the course of employment under the Government Employees' Compensation Act9 which by s. 12 precludes any claim against Her Majesty, other than for compensation under that Act where an accident happens to an employee under circumstances entitling him or his dependants to compensation.
[10] For the plaintiff it is submitted that unlike the Pension Act and the Government Employees' Compensation Act, both of which were in existence when the Canada Pension Plan Act was enacted, the latter includes no provision precluding a claim against Her Majesty by one who receives benefits under the Act. Reference is made to the comments of the Ministers concerned, as reported by Hansard, when both the Canada Pension Plan Act and the Crown Liability Act were first enacted. In the case of the former the comments are said to underline the purpose of providing a defined benefit for a disabled contributor to the plan, without any reference made to the cause of disability, and in the latter case the comments are said to underline the purpose of providing for the Crown to be responsible for loss or damage caused by it or its servants on the same basis as would apply for any private party.
[11] In the latter regard, for the plaintiff it is urged that these disability benefits are not generally deducted from judicial awards of damages to a plaintiff in tort actions. In Cugliari v. White10 the Ontario Court of Appeal upheld the Divisional Court which reversed a trial judgment which had deducted Canada Pension Plan disability benefits received by the successful plaintiff in calculating an award for loss of income in accord with the Ontario Insurance Act. In concluding that the disability benefits were not deductible either under the Ontario Act or at common law, Madam Justice Charron for the Court of Appeal considered that the disability pension is not intended to compensate or indemnify the recipient for loss of income, rather it is akin to a private policy of insurance, payable to a qualified contributor under the plan in relation to his or her disability. The disability pension benefits were not deductible from a damage award, either under the Ontario Insurance Act or at common law.
[12] In Gauthier (Litigation Guardian of) v. Smith11, Madam Justice Charron had commented earlier, albeit in obiter, speaking with reference to a potential claim for disability benefits, "It is quite debatable as to whether a pension under this [Canada Pension Plan] Act would constitute 3a pension or compensation3 within the meaning of s. 9 of the Crown Liability Act...". She did not find it necessary in that case to determine that issue, or whether the receipt of a pension would constitute a bar under the Crown Liability Act . In part the matter was later determined in her decision for the Court of Appeal in Cugliari, supra, by which she determined that a disability pension under the Canada Pension Plan Act was not indemnification for loss of income, at least. For similar reasons the disability benefits, in my opinion, cannot be a "pension" or "compensation" within s. 9 of the Act.
[13] Under the Canada Pension Plan Act, a "pension" by s. 2 is a "pension payable under [the] Act", a definition that includes the plaintiff's disability pension payable under s. 44. Whether the disability pension paid to the plaintiff is a "pension" within s. 9 of the Act depends upon whether it is found to be within the descriptive terms used in that section, in particular "a pension payable...in respect of the death, injury, damage or loss in respect of which the claim is made" by the plaintiff who is in receipt of the pension.
[14] It is the defendant's view that since the plaintiff is in receipt of a disability pension paid under the Canada Pension Plan Act, the plaintiff's claim is barred by s. 9. It is urged in written submissions that payments under that Act are paid from the Consolidated Revenue Fund, and "the receipt of the pension is in respect of injuries suffered at the Pittsburgh Institution, and it is based on those same injuries that this action was commenced".
[15] By the statement of claim filed, the plaintiff, noting injuries suffered in the incident at Pittsburgh Institution, alleging negligence on the part of Her Majesty's servants and alleging liability on the part of Her Majesty as occupier of the Institution's premises, claims general damages for pain and suffering, and loss of enjoyment of life. He also claims special damages for out of pocket expenses, plus interest and costs of the action. In my opinion, the disability pension paid to the plaintiff is not paid "in respect of the...injury, damage or loss in respect of which the [plaintiff's] claim is made".
[16] The disability pension is paid to the plaintiff as a qualified contributor under the Canada Pension Plan in relation to his disability, without reference to the cause of that disability. It is not paid in respect of the "injury, damage or loss" claimed in this action, i.e., for pain and suffering, loss of enjoyment of life, or out of pocket expenses arising from the plaintiff's injuries. The pension is terminable, if the plaintiff's condition of disability ends, if he becomes 65 years of age or qualifies for another federal or provincial pension, or if he dies. It is paid on the basis of a statutory formula without regard to whether the plaintiff has suffered any pecuniary loss, or any injury. In this case, while it may be possible to trace the plaintiff's disability to the injuries suffered as a result of the incident at the Institution, in my opinion that injury is not the basis of or the reason for disability pension entitlement under the Canada Pension Plan Act.
[17] The circumstances here are distinguishable from those in Langille where the compensation paid to the plaintiffs under applicable regulations was clearly payable in relation to the animals of the plaintiffs that were ordered destroyed, and the loss of those animals was the basis of the plaintiffs' claim in that case. The disability pension in this case is not paid in respect of the injuries or damage suffered by the plaintiff as a result of the accident at Pittsburgh Institution.
Conclusion
[18] For these reasons, while the defendant's motion to amend the statement of defence is allowed, I am not persuaded that the defendant's motion for summary judgment based upon s. 9 of the Act should be allowed. It is not plain and obvious that the plaintiff has no arguable case. Thus, the defendant's motion for summary judgment is dismissed.
W. Andrew MacKay
Judge
Ottawa, Ontario
September 15, 1998.
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1 R.S.C. 1985, c. C-50.
2 R.S.C. 1985, c. C-8.
3 Supra, note 1.
4 [1992] 2 F.C. 208 (C.A.).
5 Id, at p. 213.
6 (1996) 30 O.R. 687 at 690 (C.A.).
7 R.S.C. 1985, c. P-6.
8 R.S.C. 1985, c. G-5, as amended.
9 See, Arsenault v. Canada (1995), 131 D.L.R. 4th 105 at 111-113 (F.C.T.D.); O'Connor v. Canada (1995), 94 F.T.R. 93 at 102; Carter v. Canada (1994), 18 F.T.R. 298 at 301; Bates v. Illerburn (1976), 12 O.R. (2d) 721 at 724 (Ont. C.A.).
10 [1998] O.J. No. 1628 (Apr. 23, 1998) (Ont. C.A.).
11 (1992) 1 C.C.P.B. 87 (Ont. Gen. Div.).
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