Hislop et al. v. The Attorney General Canada [Indexed as: Hislop v. Canada (Attorney General)]
95 O.R. (3d) 81
Court of Appeal for Ontario,
Lang, Rouleau and Watt JJ.A.
April 30, 2009
Civil procedure -- Class proceedings -- Fees -- Plaintiffs in class proceeding succeeding in having certain provisions of Canada Pension Plan declared invalid with result that otherwise-eligible class members became entitled to CPP survivors' pensions -- Declaration of eligibility constituting "benefit" under Canada Pension Plan and "monetary award" under Class Proceedings Act -- Prohibition in Canada Pension Plan against assignment or charge of CPP benefits prevailing over first charge on monetary award that plaintiffs' lawyers would usually have under Class Proceedings Act for amounts owing under approved fee agreement -- Canada Pension Plan, R.S.C. 1985, c. C-8, ss. 2(1), 65(1) -- Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 32(3).
The appellant lawyers represented the plaintiffs in class proceedings which attacked the constitutionality of certain amendments to the Canada Pension Plan. The plaintiffs succeeded in having ss. 44(1.1) and 72(2) of the CPP declared invalid, with the result that otherwise-eligible class members were entitled to CPP survivors' pensions. The appellants had entered into a fee agreement with the class members which was approved by the trial judge. Under s. 32(3) of the Class Proceedings Act, 1992, amounts owing to lawyers under an approved fee agreement are a first charge on any settlement funds or monetary award made in the litigation. However, under ss. 2(1) and 65(1) of the Canada Pension Plan, CPP benefits cannot be assigned or charged and any transaction that purports to assign or charge those benefits is void. The appellants appealed a decision that the first charge they would otherwise have under the CPA was void under the CPP.
Held, the appeal should be dismissed.
To constitute a "benefit" within ss. 2(1) and 65(1) of the CPP, the benefit must have its origins in the CPP. The remedy obtained in the class proceedings had to do with CPP benefits. The invocation of the Canadian Charter of Rights and Freedoms to establish entitlement did not eliminate the CPP as the source of the benefits obtained. The award was an award of "benefits" under the CPP. It was also a "monetary award" for the purposes of s. 32(3) of the CPA. Section 94A of the Constitution Act, 1867 resolves conflicts between federal and provincial "laws in relation to old age pensions and supplementary benefits". That section enacts a reverse paramountcy rule, assigning predominance to provincial laws contrary to the usual preferential place accorded federal laws. To engage s. 94A, there must be both federal and provincial "laws in relation to old age pensions and supplementary benefits", or laws in relation to either one of those subjects. The CPP qualifies as a law "in relation to old age pensions and supplementary benefits". The CPA, on the other hand, is a statute of general application, lacking any specific provisions for class actions involving pensions or supplementary benefits. The conditions precedent to the rule establishing provincial paramountcy were not established. The CPP prevailed. As the first charge awarded by s. 32(3) of the CPA was a transaction purporting to charge or attach CPP benefits, the charge was void.
APPEAL from the order of E.M. Macdonald J., [2008] O.J. No. 793, 2008 8248 (S.C.J.) that the appellants' charge for amounts owing under the approved fee agreement was void.
Cases referred to
Bell ExpressVu v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; [page82 ]Bisaillon v. Concordia University, [2006] 1 S.C.R. 666, [2006] S.C.J. No. 19, 2006 SCC 19, 266 D.L.R. (4th) 542, 348 N.R. 201, J.E. 2006-1081, 51 C.C.P.B. 163, [2006] CLLC Â220-033, 147 A.C.W.S. (3d) 811, EYB 2006-105515, 149 L.A.C. (4th) 225; Canada (Minister of Human Resources Development) v. Tait, [2006] F.C.J. No. 1748, 2006 FCA 380, 356 N.R. 382, 62 Admin. L.R. (4th) 145, 153 A.C.W.S. (3d) 738; Hislop v. Canada (Attorney General), 2007 SCC 10, [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10, 278 D.L.R. (4th) 385, 358 N.R. 197, J.E. 2007-477, 222 O.A.C. 324, 153 C.R.R. (2d) 173, 37 R.F.L. (6th) 1, 154 A.C.W.S. (3d) 362, EYB 2007-115536, affg (2004), 2004 43774 (ON CA), 73 O.R. (3d) 641, [2004] O.J. No. 4815, 246 D.L.R. (4th) 644, 192 O.A.C. 331, 124 C.R.R. (2d) 1, 12 R.F.L. (6th) 71, 135 A.C.W.S. (3d) 610 (C.A.), varg 2003 37481 (ON SC), [2003] O.J. No. 5212, 234 D.L.R. (4th) 465, [2003] O.T.C. 1111, 114 C.R.R. (2d) 303, 50 R.F.L. (5th) 26, 127 A.C.W.S. (3d) 882 (S.C.J.); Hollick v. Toronto (City), [2001] 3 S.C.R. 158, [2001] S.C.J. No. 67, 2001 SCC 68, 205 D.L.R. (4th) 19, 277 N.R. 51, J.E. 2001-1971, 153 O.A.C. 279, 42 C.E.L.R. (N.S.) 26, 13 C.P.C. (5th) 1, 24 M.P.L.R. (3d) 9, 108 A.C.W.S. (3d) 774; Hooper v. Hooper (2002), 2002 44963 (ON CA), 59 O.R. (3d) 787, [2002] O.J. No. 2158, 213 D.L.R. (4th) 548, 159 O.A.C. 224, 32 C.C.P.B. 230, 30 R.F.L. (5th) 334, 114 A.C.W.S. (3d) 478 (C.A.); Mintzer v. Canada, 1995 3562 (FCA), [1995] F.C.J. No. 1726, [1996] 2 F.C. 146, 131 D.L.R. (4th) 746, 192 N.R. 39, [1996] 1 C.T.C. 249, 96 D.T.C. 6027, 60 A.C.W.S. (3d) 189 (C.A.); Ontario New Home Warranty Program v. Chevron Chemical Co. (1999), 1999 15098 (ON SC), 46 O.R. (3d) 130, [1999] O.J. No. 2245, 99 O.T.C. 384, 37 C.P.C. (4th) 175, 88 A.C.W.S. (3d) 1138 (S.C.J.); Trick v. Trick (2006), 2006 22926 (ON CA), 83 O.R. (3d) 55, [2006] O.J. No. 2737, 271 D.L.R. (4th) 700, 213 O.A.C. 105, 54 C.C.P.B. 242, 31 R.F.L. (6th) 237, 149 A.C.W.S. (3d) 843 (C.A.); Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, [2000] S.C.J. No. 63, 2001 SCC 46, 201 D.L.R. (4th) 385, 272 N.R. 135, [2002] 1 W.W.R. 1, J.E. 2001-1430, 94 Alta. L.R. (3d) 1, 286 A.R. 201, 8 C.P.C. (5th) 1, 106 A.C.W.S. (3d) 397
Statutes referred to
Canada Pension Plan, R.S.C. 1985, c. C-8, ss. 2(1), 44(1.1) [as am.], 60(2) [as am.], 65(1), (1.1) [as am.], (2) [as am.], (3) [as am.], 72(1) [as am.], (2) Canadian Charter of Rights and Freedoms, s. 15(1) Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 32(3) Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, ss. 92, 94A Constitution Act, 1982, being Sch. B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52(1) Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 Modernization of Benefits and Obligations Act, S.C. 2000, c. 12
Peter L. Roy, R. Douglas Elliott and Sean M. Grayson, for appellants. Cynthia Koller and Barney Brucker, for respondent.
The judgment of the court was delivered by
WATT J.A.: -- [page83 ]
I Overview
[1] Lawyers who conduct class proceedings under Ontario law are compensated in accordance with a fee agreement if approved by a judge of the Superior Court of Justice. Amounts owing to the lawyers under the approved fee agreement are a first charge on any settlement funds or monetary award made in the litigation: Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 32(3) ("CPA").
[2] Canada Pension Plan benefits cannot be assigned or charged and any transaction that purports to assign or charge those benefits is void: Canada Pension Plan, R.S.C. 1985, c. C- 8, ss. 2(1) and 65(1) ("CPP").
[3] In this case, a judge of the Superior Court of Justice decided that a declaration that some class members were entitled to an award of retroactive and future Canada Pension Plan ("CPP") benefits was both a "monetary award" under the CPA and a "benefit" under the CPP. The judge also decided that the prohibition against assignment or charge of CPP benefits prevailed over the first charge the lawyers would usually have over a monetary award under the CPA.
[4] The appellants, the lawyers who represented the plaintiffs in the class proceedings litigation, collectively known as the plaintiffs' counsel group ("PCG"), say that the judge was wrong in failing to grant them a first charge for their fees on the award they achieved. I agree with the judge at first instance and would dismiss the appeal.
II The Background Facts
(1) The original claim and its disposition at trial
[5] George Hislop and several others (the "Hislop class") undertook class action proceedings in which they claimed that certain amendments made to the CPP by the Modernization of Benefits and Obligations Act, S.C. 2000, c. 12 ("MBOA") to the CPP offended s. 15(1) of the Canadian Charter of Rights and Freedoms -- the class members had been denied CPP survivors pensions because they and their deceased partners were of the same sex. The Hislop class sought declaratory relief, damages and a monetary judgment.
[6] The trial judge struck down two subsections of the CPP under s. 52(1) of the Constitution Act, 1982, being Sch. B to the Canada Act 1982 (U.K.), 1982, c. 11 and granted class members a constitutional exemption from two general sections of the CPP, ss. 60(2) and 72(1). In the result, each class member would receive full arrears on their pensions, depending on the date of their same-sex partner's death, as far back as 1985, plus the [page84 ]prospective CPP Survivor's Pension: Hislop v. Canada (Attorney General), 2003 37481 (ON SC), [2003] O.J. No. 5212, 234 D.L.R. (4th) 465 (S.C.J.).
[7] As a result of the trial judgment, otherwise-eligible class members became entitled to receive prospective survivors' pensions and survivors' pensions arrears calculated from one month following the death of their partner, plus interest.
(2) The appellate proceedings
[8] On appeal to this court and the Supreme Court of Canada, the constitutional exemptions granted by the trial judge were set aside but the declaration of invalidity of ss. 44(1.1) and 72(2) of the CPP was upheld. In the end, otherwise-eligible class members are entitled to CPP survivors' pensions. The amount of arrears to which individual class members are entitled varies with the date of application: Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10, affg (2004), 2004 43774 (ON CA), 73 O.R. (3d) 641, [2004] O.J. No. 4815 (C.A.).
(3) The retainer agreement and fee approval
[9] On April 30, 2004, the trial judge approved the retainer agreement entered into between the PCG and Hislop class members and applied a 4.8 multiplier for the trial and appeal.
[10] The respondent was not a party to PCG's motion to approve the retainer agreement.
[11] Prior to the application of the 4.8 multiplier, PCG has incurred total fees in excess of $5.3 million and has received fees, exclusive of all disbursements, of slightly less than $2 million. The respondent's estimate of the quantum of pension arrears owing to Hislop class members, according to its interpretation of the judgment, exceeds $3.5 million.
III The Issues
[12] This appeal involves the applicability and operation of two statutes, one provincial the other federal, which seem at odds with one another over PCG's right to a first charge on a monetary award made in a class proceeding to establish entitlement to CPP benefits.
[13] The issues raised may be reduced to a series of three questions: (1) Did the Hislop class obtain a "benefit" within s. 2(1) of the CPP that is subject to the provisions of s. 65(1) of the CPP? (2) Did the Hislop class obtain a "monetary award" within s. 32(3) of the CPA? [page85 ] (3) If the answer to both questions 1 and 2 is "yes", which statute prevails?
IV The Relevant Statutory Provisions
(1) The CPP
[14] Section 2(1) of the CPP provides exhaustive definitions of the terms "applicant", "benefit" and "pension":
Definitions
2(1) In this Act,
"applicant" means, in Part II, (a) a person or an estate that has applied for a benefit, (b) a person who has applied for a division of unadjusted pensionable earnings under section 55 or paragraph 55.1(1)(b) or (c), or (c) a person in respect of whom division of unadjusted pensionable earnings has been approved under paragraph 55.1(1)(a); . . . . .
"benefit" means a benefit payable under this Act and includes a pension; . . . . .
"pension" means a pension payable under this Act
[15] Section 65(1) of the CPP prohibits various transactions involving benefits payable under the CPP:
Benefit not to be assigned, etc.
65(1) A benefit shall not be assigned, charged, attached, anticipated or given as security, and any transaction purporting to assign, charge, attach, anticipate or give as security a benefit is void.
[16] Section 65(1.1) exempts benefits from seizure and execution, both at law and in equity.
(2) The CPA
[17] Section 32 of the CPA authorizes fee agreements and provides for their enforceability. Of particular importance here is s. 32(3):
Priority of amounts owed under approved agreement
32(3) Amounts owing under an enforceable agreement are a first charge on any settlement funds or monetary award.
[18] The term "monetary award" in s. 32(3) is not defined in or for the purposes of the CPA or in any other applicable statute. [page86 ]
(3) [Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3](https://www.canlii.org/en/ca/laws/stat/30---31-vict-c-3/latest/30---31-vict-c-3.html)
[19] Section 94A of the Constitution Act, 1867 empowers Parliament to make laws in relation to old age pensions and supplementary benefits, including survivors' and supplementary benefits, irrespective of age, but assigns federal legislation to a subservient place in the face of provincial legislation in relation to the same-subject matter.
Legislation respecting old age pensions and supplementary benefits
94A The Parliament of Canada may make laws in relation to old age pensions and supplementary benefits, including survivors' and disability benefits irrespective of age, but no such law shall affect the operation of any law present or future of a provincial legislature in relation to any such matter.
V Analysis
The first issue: Did the Hislop class obtain a "benefit" under the CPP?
Introduction
[20] Section 65(1) of the CPP prohibits assignment and transactions purporting to assign benefits under the CPP. Similarly, the subsection bars charging and transactions purporting to charge benefits under the CPP. The benefits are exempt from seizure and execution either at law or in equity.
[21] The first issue that ripens for decision here is whether what the Hislop class obtained was a "benefit" under s. 2(1) of the CPP, thus whether PCG's s. 32(3) CPA claim falls foul of s. 65(1) of the CPP.
The positions of the parties
[22] PCG denies that s. 65(1) of the CPP bars their claim under s. 32(3) of the CPA.
[23] PCG argues that the monetary award the Hislop class achieved only became available to class members and payable to them as a result of a successful constitutional challenge to the provisions of the CPA. In other words, the remedy, although it related to CPP benefits, was not payable under the CPP as it must be to trigger the prohibition of s. 65(1) of the CPP.
[24] The appellants also say that the application of s. 65(1) would undermine the access to justice principles that underpin the CPA. Section 65(1) is typical of pension legislation and its rigorous enforcement would stifle future proceedings similar to those undertaken here.
[25] The respondent takes the position that s. 65(1) applies to prohibit the appellants' first charge under s. 32(3) of the CPA in [page87 ]this case. The obvious purpose of s. 65(1) is to protect CPP beneficiaries from the conduct of third parties who seek to attach pension benefits created to ensure comfort and security in retirement years. PCG seeks to impose and execute a solicitor's lien, which amounts to a charge on benefits payable under the CPP. The Act brooks no exceptions, apart from those described in s. 65(2) and (3), neither of which applies here.
[26] The respondent points out that the declaration of constitutional invalidity does not take the remedy granted outside the CPP. The benefits to which the Hislop class is entitled are benefits payable under the CPP, the source of the benefits claimed.
Discussion
[27] The application of s. 65(1) [of the] CPP requires a confluence of subject matter and conduct. The subject matter must be a benefit payable under the CPP. The conduct must be in the nature of an assignment, charge, attachment, anticipation or giving of a CPP benefit as security, or other such transaction that purports to assign, charge, attach, anticipate or give as security a CPP benefit.
[28] Under s. 2(1) of the CPP, a "benefit" is exhaustively defined as a benefit payable under the Act. A "benefit" includes, but is not limited to, a pension as defined elsewhere in s. 2(1) of the CPP.
[29] To constitute a "benefit" within ss. 2(1) and 65(1) of the Act, the benefit must have its origins in the Act. In other words, the obligation to pay and the entitlement to receive the benefit must originate in the Act and not reside elsewhere.
[30] It is scarcely necessary to advance beyond the issues formulated by the Supreme Court of Canada in the proceedings before it and the relief granted by that court to conclude that this litigation and the remedy obtained had to do with CPP benefits. The invocation of the Charter to establish entitlement does not eliminate the CPP as the source of the benefits obtained. The award to the Hislop class was an award of benefits under the CPP.
[31] The appellants seek to collect amounts owing to them for their legal services under an enforceable agreement approved by a judge of the Superior Court of Justice under the CPA. They seek to do so by imposing a "first charge" on a "monetary award" under s. 32(3) of that Act.
[32] In my view, the "first charge" for which s. 32(3) of the CPA provides, essentially a solicitor's lien, sits comfortably within the term "charged", perhaps "assigned" as well, in s. 65(1) of the [page88 ]CPP. Any transaction purporting to assign or charge a CPP benefit is declared void by s. 65(1) of the Act.
[33] The language of s. 65(1), for that matter s. 65(1.1) of the CPP, is unqualified and has been vigorously enforced, as have similar provisions in provincial pension legislation: Trick v. Trick (2006), 2006 22926 (ON CA), 83 O.R. (3d) 55, [2006] O.J. No. 2737 (C.A.), at paras. 66-67 and 71-72; Hooper v. Hooper (2002), 2002 44963 (ON CA), 59 O.R. (3d) 787, [2002] O.J. No. 2158 (C.A.), at paras. 44, 51 and 60; Canada (Minister of Human Resources Development) v. Tait, [2006] F.C.J. No. 1748, 2006 FCA 380, at para. 32; Mintzer v. Canada, 1995 3562 (FCA), [1995] F.C.J. No. 1726, [1996] 2 F.C. 146 (C.A.), at para. 15.
[34] The appellants' invocation of s. 32(3) of the CPA to impose and execute a first charge on the "monetary award" made in the original proceedings implicates s. 65(1) of the CPP if the "monetary award" under s. 32(3) of the CPA is also a "benefit" under ss. 2(1) and 65(1) of the CPP. The first charge awarded by s. 32(3) of the CPA is a transaction purporting to charge or attach a CPP benefit, thereby void if s. 65(1) of the CPP prevails.
The second issue: Did the Hislop class obtain a "monetary award" within s. 32(3) of the CPA?
Introduction
[35] This issue requires a determination of whether s. 32(3) [of the] CPA applies to the remedy granted to the Hislop class in the original class proceeding. Unless what was granted amounts to a "monetary award" within s. 32(3), the appellants' case fails in limine for want of anything to which their first charge can attach.
The position of the parties
[36] The appellants say that, as a remedial statute, the CPA and its various provisions, including s. 32(3), should be given a broad purposive interpretation consonant with its objects, which include judicial economy, increased access to the courts and behaviour modification.
[37] It is the appellants' position that the remedy granted here, when all is said and done, is a "monetary award" within s. 32(3) of the CPA. After all, the remedy resulted effectively in an award of arrears of pension benefits, said otherwise, the payment of money, to those who could establish their eligibility in accordance with the CPP scheme. The mere fact that a declaration was a necessary first step does not alter the inalienable fact that the ultimate result of the litigation was that qualified applicants in the Hislop class will be paid money under the CPP. [page89 ]
[38] The respondent sees it differently. From its perspective, the relief granted here was declaratory only. The final decision simply declared an entitlement to CPP benefits, the right to stand in line, along with others, to obtain benefits on proof of entitlement. The mere fact that the declaratory relief granted will ultimately generate money for eligible Hislop class members does not transform the fundamental nature of the relief from a declaration to a monetary award.
[39] The respondent points out that where the remedy is simply a monetary judgment, the payment provisions of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 would have been engaged requiring a statutory appropriation of public moneys and payment out of the Consolidated Revenue Fund, rather than acceptance and processing of claims by staff administering the CPP.
[40] The respondent also takes issue with the appellants' invocation of access to justice principles in support of their claim. They argue that denial of the appellants' claim will not deter future class actions and class counsel will be well compensated through costs awards in this case and readily embrace new class proceedings.
Discussion
[41] The term "monetary award" in s. 32(3) of the CPA is not defined anywhere in the statute or elsewhere in any statute incorporated by reference or of general application. It follows that the term, more broadly, the words of the subsection, must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, its object and the intention of a legislature: Bell ExpressVu v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26.
[42] The CPA is a procedural statute, one adopted by the legislature to ensure that the courts had a procedural tool sufficiently refined to allow them to deal efficiently, and on a principled rather than an ad hoc basis, with increasingly complicated modern litigation: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, [2001] S.C.J. No. 67, at para. 14; Ontario New Home Warranty Program v. Chevron Chemical Co. (1999), 1999 15098 (ON SC), 46 O.R. (3d) 130, [1999] O.J. No. 2245 (S.C.J.), at para. 50.
[43] Despite its procedural nature, the CPA is to be construed generously: Hollick, at para. 14. The phrase "generous construction" is not, however, a licence to run amok and to confer on statutory language a meaning that it does not reasonably bear, but neither can it sponsor a triumph of form over substance. [page90 ]
[44] In ordinary speech, "monetary" means "of or pertaining to money", said otherwise, pecuniary. In similar discourse, "award" refers to a payment or penalty imposed by judicial authority. A monetary award is a payment of money imposed by judicial authority.
[45] In the end, what the plaintiffs sought in their proceeding were CPP benefits, moneys payable under the CPP. To gain those benefits, the Hislop class was first required to establish the constitutional invalidity of the statutory provisions that excluded them from participation in the benefits of the plan. With the statutory impediments set aside, any class member who can demonstrate entitlement will receive the benefits for which the plan provides: payments in money.
[46] The decision of the Supreme Court of Canada in the original proceedings, Canada (Attorney General v. Hislop), supra, is replete with references like "survivor benefits", "retroactive benefits", "pension payments" and the like. Indeed, the court appears to have considered the plaintiffs' claim to be "tantamount to a claim for compensatory damages flowing from the underinclusiveness of the legislation": Hislop, at para. 102.
[47] The conclusion that I have reached on the third issue renders it unnecessary to make a final determination of whether the declaratory aspects of the remedy obtained by the Hislop class removes that remedy from a "monetary award" within s. 32(3) of the CPA, thus from the first charge in the appellant's favour that the subsection authorizes. For present purposes, I am prepared to assume, without deciding, that the Hislop class obtained a "monetary award" that, prima facie, would be subject to a first charge in favour of PCG.
The third issue: Which statute prevails?
Introduction
[48] The final issue requires a resolution of the conflict between the two statutes. Does one give ground? Or can they get along together?
The position of the parties
[49] The appellants favour an approach that validates both statutory provisions by permitting a charge to attach to the portion of the arrears that exceeds 11 months, thus validating both s. 32(3) and the goals of the CPA. At the same time, s. 65(1) of the CPP can shelter the statutory level of benefits payable under the CPP, namely current pensions plus 11 months of arrears. [page91 ]
[50] The appellants advance an alternative argument in the event that their claim of concurrent operation fails. Section 94A of the Constitution Act, 1867, the appellants say, assigns to the provincial legislation, the CPA, a paramount place in the event of conflict between the two statutory schemes.
[51] The CPA is valid provincial legislation, a procedural statute enacted to permit and regulate the form of class proceedings. Its validity is not affected simply because it has an incidental effect on validly enacted federal legislation governing old age security and pension benefits. After all, the province has always had at least concurrent jurisdiction over the same subject-matter.
[52] The CPP is valid federal legislation, enacted pursuant to the authority furnished by s. 94A of the Constitution Act, 1867. Section 65 of the Act touches on property and civil rights in the province, but merely because it has such an incidental effect is not, in itself, reason to assign it a subservient position under s. 94A.
[53] The appellants say that the enforcement of s. 32(3) will not frustrate the federal purpose in enacting the CPP. Section 65(1), a single provision, is not essential to the operation of the CPP. The statue itself does not contemplate the payments awarded here, thus could not have contemplated their protection under s. 65(1). The remainder of this section will continue to operate and its statutory purpose will be enhanced by ensuring access to justice under the CPA. This minimal conflict does not invoke federal paramountcy.
[54] The respondent takes the position that s. 94A of the Constitution Act, 1867 provides a complete answer to the appellants' submissions on this issue.
[55] The respondent says that the language "in relation to any such matter" in s. 94A refers to legislation "in relation to old age pensions and supplementary benefits". The CPA is not a law in relation to old age pensions and supplementary benefits. Provincial paramountcy under s. 94A only applies where both the federal and provincial laws are "laws in relation to old age pensions and supplementary benefits". Since that is not the case here, s. 94A cannot operate to assign paramountcy to the CPA.
[56] According to the respondent, when s. 94A is cast aside, the general rule of federal paramountcy in cases of inconsistency between federal and provincial enactments applies, s. 65(1) of the CPP prevails and the purported charge cannot operate. [page92 ]
Discussion
The CPA
[57] The CPA is a comprehensive procedural statute to provide for and regulate the conduct of class proceedings in Ontario. It neither modifies nor creates substantive rights: Hollick v. Toronto (City), supra, at para. 14; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, [2006] S.C.J. No. 19, at para. 17; Ontario New Home Warranty Program v. Chevron Chemical Co., supra, at para. 50; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, [2000] S.C.J. No. 63, at paras. 27-29. The CPA is a statute of general application, lacking any specific provisions for class actions involving pensions or supplementary benefits.
[58] It is common ground that the CPA is constitutionally valid provincial legislation, enacted under the authority of heads 13 and 14 of s. 92 of the Constitution Act, 1867.
The CPP
[59] The CPP was created by the enactment of a statute of the same name in 1965. Its constitutional sponsor is s. 94A of the Constitution Act, 1867, first enacted in 1951 and amended to add "and supplementary benefits" in 1964.
[60] The power s. 94A confers on Parliament to make laws in relation to old age pensions and supplementary benefits is expressly concurrent with provincial power over the same subject-matter.
The paramountcy rule in s. 94A
[61] Section 94A of the Constitution Act, 1867, resolves conflicts between federal and provincial "laws in relation to old age pensions and supplementary benefits". This section enacts a reverse paramountcy rule, assigning predominance to provincial laws contrary to the usual preferential place accorded federal laws.
[62] To engage s. 94A, there must be both federal and provincial "laws in relation to old age pensions and supplementary benefits", or laws in relation to either one of those subjects.
[63] In this case, the CPP qualifies as a law "in relation to old age pensions and supplementary benefits". But the CPA cannot claim any such constitutional foundation. The CPA is a statute of general application, a law that deals with procedure in civil matters. The CPA, in its current form, is not and does [page93 ]not purport to be a law "in relation to old age pensions and supplementary benefits". In the result, the conditions precedent to the rule establishing provincial paramountcy are not established. And so it is that the appellants cannot summon s. 94A in support of their claim that they are entitled to a first charge under s. 32(3) of the CPA.
VI Disposition
[64] I would dismiss the appeal. Since the Attorney General does not seek costs, I would make no order as to costs.
Appeal dismissed.