COURT OF APPEAL FOR ONTARIO
MORDEN, BORINS and FELDMAN JJ.A.
BETWEEN:
BENJAMIN DIONNE
John E. Merner for the appellant
Plaintiff (Appellant)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF THE DOMINION OF CANADA
Lynn Marchildon for the respondent
Defendant (Respondent)
Heard: March 8, 2002
On appeal from the judgment of Justice Paul F. Lalonde dated September 28, 2001.
1[1] The plaintiff appeals from an order of Lalonde J., made on the defendant’s motion, dismissing the plaintiff’s action on the basis that it is barred by s. 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. This provision reads:
- 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.
2[2] The plaintiff, a member of the Canadian Armed Forces, reserve, was injured while performing his duties. He was awarded a pension under the Pension Act, R.S.C. 1985, c. P-6, s. 21(2), as amended, with respect to the disability resulting from this injury. The relevant parts of this provision read:
(2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,
(a) where a member of the forces suffers disability resulting from an injury … that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member… .
3[3] At the conclusion of the hearing of the appeal this court was of the view that the conclusion of Lalonde J. was correct and that the appeal should be dismissed, but was persuaded to reserve its decision until the Supreme Court of Canada had decided the appeal from the Federal Court of Appeal in Sarvanis v. Canada (2000), 2000 14757 (FCA), 184 D.L.R. (4th) 124. The Supreme Court rendered its decision in Sarvanis, 2002 SCC 28, 2002 S.C.C. 28, on March 21, 2002.
4[4] We are satisfied that the reasons of the Supreme Court in Sarvanis are of no assistance to the appellant and, in fact, clearly support the correctness of the judgment before us. In Sarvanis, the plaintiff was in receipt of a pension under the Canada Pension Plan Act, R.S.C. 1985 c. C-8. In concluding that the plaintiff’s claim in that case was not barred by s. 9 of the Crown Liability and Proceedings Act, the court held that, because the benefits payable under that statute were contingent on a mere disability, and not on the factual basis specified in s. 9 – “in respect of … death, injury, damage or loss” – they did not fall within its scope. The court, in paragraph 34 of its reasons, contrasted other “statutes providing pensions or compensations that are clearly foreclosed by s. 9 of the Crown Liability and Proceedings Act.” One example the court considered was the Pension Act.
5[5] In paragraph 35 the court said:
The key difference among … these examples of pensions which, upon receipt or eligibility, do foreclose an action pursuant to s. 9 of the Crown Liability and Proceedings Act is not simply the fact that the bar is repeated in each particular statute. Rather, it is that in each case the crucial condition of eligibility is the occurrence of “death, injury, damage or loss”, and that it is because of that occurrence that the pension is received. For example, s. 21(1)(a) [relating to service during World War I or World War II] of the Pension Act provides that a pension is granted only “where a member of the forces suffers disability resulting from an injury or disease… that was attributable to or was incurred during military service…”. (Emphasis in original)
6[6] Section 21(2) of the Pension Act is similar to s. 21(1)(a) of the Pension Act, considered in Sarvanis, in that it provides for the granting of the pension only where disability is the result of an injury that arises out of, or is directly connected with, military service. We are satisfied that a pension paid under s. 21(2), as in the case of one under s. 21(1)(a), forecloses an action pursuant to s. 9 of the Crown Liability and Proceedings Act.
7[7] For these reasons the appeal is dismissed with costs. Having received submissions from the parties, we fix the costs at $1500.00.
“J.W. Morden J.A.”
“S. Borins J.A.”
“K. Feldman J.A.”
Released: May 22, 2002