Toth v. Canada

Toth v. Canada
Court (s) Database
Federal Court Decisions
Date
2019-01-30
Neutral citation
2019 FC 125
File numbers
T-1068-14
Decision Content
Date: 20190130
Docket: T-1068-14
Citation: 2019 FC 125
Ottawa, Ontario, January 30, 2019
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
RAYMOND MICHAEL TOTH
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
ORDER AND REASONS
[1] The Representative Plaintiff, Mr. Michael Raymond Toth [Mr. Toth or the Plaintiff], and the Defendant bring this joint motion pursuant to Rule 334.29 of the Federal Courts Rules, SOR/98-106 [the Rules] seeking approval of the Settlement Agreement in this Class Action. Class Counsel and Mr. Toth also seek the approval of the legal fees and disbursements of Class Counsel and an honorarium of $50,000 for Mr. Toth, to be paid by Class Counsel out of the approved legal fees.
[2] For the reasons that follow, the Court approves the Settlement Agreement, the legal fees and disbursements of Class Counsel and the honorarium for Mr. Toth as the Representative Plaintiff.
I. Background
[3] This Class Action addresses the claims of veterans who were in receipt of various benefits, including Disability Pension benefits, and had the Disability Pension amounts deducted from the other benefits which they received or were entitled to receive.
[4] The benefit programs at issue in the Class Proceeding are: the War Veterans Allowance [WVA] created under the War Veterans Allowance Act, RSC 1985, c W-3 and the Earnings Loss Benefit [ELB] and Canadian Forces Income Support [CFIS] benefit created under the New Veterans Charter (officially the Veterans Well Being Act, SC 2005 c. 21).
[5] The Class is comprised of: veterans of World War II and the Korean War, including their eligible spouses, dependants, survivors, or orphans [War Veterans]; and veterans of the Canadian Armed Forces, including their eligible spouses, dependants, survivors, or orphans [CAF Veterans].
[6] As explained in the affidavit of Michael Doiron, Assistant Deputy Minister Service Delivery with Veterans Affairs Canada [VAC], a Disability Pension under the Pension Act, RSC 1985, c P-6 [Pension Act] consists of monthly tax-free payments to eligible CAF Veterans and War Veterans, and their survivors and dependants.
[7] To qualify for a Disability Pension there must be, first, a medically diagnosed disability connected to military service and an assessment of the degree to which the injury is attributable to military service (entitlement), and second, an assessment of the extent or degree of the disability. The assessment of a disability is expressed as a percentage from 0% to 100%. The extent of disability may be reassessed at a later date and the disability rate may be adjusted.
[8] Since the enactment of the New Veterans Charter on April 1, 2006, no new monthly Disability Pensions have been awarded to CAF Veterans who served after the Korean War. However, CAF Veterans who received a Disability Pension under the Pension Act before April 1, 2006 continue to receive a monthly pension. Those who served after 2006 and became disabled may be eligible for a lump sum for disability, but not a monthly pension.
[9] As explained in the affidavit of Mr. Doiron, ELB came into effect in April 2006 as a taxable monthly benefit for eligible CAF Veterans who require rehabilitation or vocational assistance. It is payable during the period of rehabilitation services and vocational assistance. ELB can be payable until a CAF Veteran reaches 65 years of age if he or she meets the applicable criteria.
[10] The CFIS is a non-taxable monthly benefit available to CAF Veterans who are no longer entitled to ELB and are capable of working, but are not employed. The benefit is provided to CAF Veterans who are under 65 years of age and meet the employment and income criteria.
[11] The WVA is also a non-taxable benefit, which is available to low income War Veterans or their survivors and orphans to assist in meeting their basic needs. The amount of the benefit is based on an assessment of income from other sources and on marital status and the number of dependants.
[12] In accordance with the statutory provisions, Disability Pension amounts were deducted from the monthly benefits payable to CAF Veterans under ELB and CFIS up until September 30, 2012.
[13] Similarly, Disability Pension amounts were deducted from the monthly benefit payments to War Veterans under the WVA program up until September 30, 2013 (i.e., one year later).
[14] As a result of amendments made in 2012 and 2013 to the relevant statutory provisions, the deductions for the Disability Pension ended. VAC provided a one-time payment to some Class Members in the fall of 2014. The one-time payment was intended to compensate veterans for the deductions made from May 29, 2012, when the Government announced that it would end the deductions of the Disability Pension, to September 30, 2012 for ELB and CFIS Class Members and to September 30, 2013 for WVA Class Members, when the amendments came into force.
[15] The Plaintiff received a one-time payment in 2013. In addition, he more generally challenged the previous policy of deducting monthly Disability Pension benefits from the benefits available to disabled veterans under other federal benefit programs. He commenced this Action on behalf of Class Members in April 2014.The Statement of Claim noted that the amount of the deductions in individual cases was based on the degree of the veteran’s disability. The greater the disability, the greater the amount deducted and the lesser the amount received under WVA, ELB or CFIS. The original Statement of Claim asserted both common law claims and claims under the Canadian Charter of Rights and Freedoms [the Charter].
[16] In January 2016, the Statement of Claim was amended, with the consent of the Defendant, to exclude the common law claims for breach of social covenant, breach of fiduciary duty, unjust enrichment, unlawful assignment under the Pension Act and related claims. The Amended Statement of Claim narrowed the claims to the infringement of the Class Members’ Charter equality rights.
[17] The Plaintiff now argues that as a result of the Government’s previous policy of deducting payments intended to compensate veterans for their disability, Class Members suffered discrimination based on disability, which violates section 15 of the Charter.
[18] In March 2016, this Court certified the action as a Class Action, with the consent of the Defendant. As noted above, the Class includes War Veterans and CAF Veterans. The Certification Order describes two groups as follows:
· ELB/CFIS Class
All Canadian Forces members and veterans, and their spouses, dependants, survivors, and orphans who received a reduced Earnings Loss Benefit or Canadian Forces Income Support Benefit between April 1, 2006 and May 29, 2012, or received no benefit at all during that time, because of the deduction of disability benefit entitlements under the Pension Act; and
· WVA Class
All veterans, their spouses, dependants, survivors, and orphans who received a reduced allowance under the War Veterans Allowance Act between April 17, 1985 and May 29, 2012, or who did not receive a veterans allowance at all during that time, because of the deduction of disability benefit entitlements under the Pension Act.
[19] This Court certified four common issues for determination. The Notice of the Certification Order was published in the National Post and Globe and Mail in French and English in April 2016. The 2016 Notice indicated, among other things, that the Class sought a declaration that the deduction of disability benefits was discriminatory and sought a “refund of all disability benefits deducted and/ or damages”. The 2016 Notice explained that by agreement with the Plaintiff, a scaled legal fee of up to 30% of any amounts received would be paid to Class Counsel, subject to the approval of the Court. The Notice directed interested persons to contact Class Counsel, Gowling WLG and Michel Drapeau Law Office [MDLO], for further information.
[20] VAC mailed the Notice of the Certification Order to the known 15,000 Class Members in August 2016. As noted by Mr. Doiron, the goal was to reach all CAF Veterans and War Veterans who received a monthly Disability Pension between April 2006 and May 2012, and who had either received, or were eligible to receive, ELB, CFIS or WVA payments during that period.
[21] The parties explain that they launched settlement discussions in the summer of 2017, which lasted over a year and involved several proposals and counter-proposals and arduous negotiations, ultimately resulting in the proposed Settlement Agreement.
[22] The proposed Settlement Agreement seeks to compensate Class Members for the alleged discrimination arising from mental or physical disability. As explained in more detail below, this compensation is not restitution or a refund for the amounts that were deducted. The total amount of the Settlement is $100 million, less the legal fees and disbursements of Class Counsel as approved by the Court.
[23] In September 2018, the Court approved the Notice to the Class of the Proposed Settlement. The 2018 Notice was mailed to known Class Members and posted on the website of Gowling WLG and MDLO. The September 2018 Notice, among other information, advised Class Members: that a proposed Settlement Agreement had been reached, that the Court’s approval of the Settlement Agreement was required, the proposed date for the hearing to determine whether the Settlement Agreement should be approved, how Class Members could voice their support or objections regarding the proposed settlement, how and where they could attend the hearing, and that the website of Class Counsel included further details. The 2018 Notice indicated that the Class Action seeks “damages and compensation for all class members who were subject to the deduction”.
[24] The key terms of the proposed Settlement Agreement were set out in the 2018 Notice, including that payments to CAF Veterans who were entitled to ELB and CFIS and received a disability pension between 2006 and 2012 would receive a payment based on the degree of their disability (as determined by their assessment pursuant to the Pension Act), and War Veterans would receive a lump sum payment.
[25] The 2018 Notice further indicated that Class Counsel would seek the Court’s approval of their fees at 17% of the settlement amount plus disbursements. In addition, the Notice advised Class Members that the Court’s approval would be sought for payment of an honorarium of $50,000 to Mr. Toth, to be paid out of Class Counsel’s fees.
II. The Proposed Settlement
[26] The Defendant will pay $100 million as the Total Settlement Amount. The fees and disbursements of Class Counsel, as approved by the Court, will be paid from the total Settlement amount. The Settlement addresses all claims for damages, compensation, fees and disbursements.
[27] The basis for the settlement was described by the parties in their submissions to the Canada Revenue Agency regarding a determination on the tax consequences of the payments and in their submissions to this Court. The parties note that the Class alleged that, contrary to section 15 of the Charter, they were discriminated against on the basis of physical and mental disability under the previous policies and practices underlying the deduction of Disability Pension amounts. The settlement focuses on compensation for harm, including pain, suffering, humiliation, and loss of dignity, resulting from this discrimination. The compensation model is based on the degree of disability rather than calculating amounts for restitution of the amounts deducted from entitlements in individual cases.
[28] The total Settlement amount is divided into two parts, the WVA fund and the ELB/CFIS Fund. The WVA fund of $30 million will provide payments to an estimated 12,500 WVA Class Members who received, or were eligible to receive, WVA benefits. The ELB/CFIS fund of $70 million will provide payments to an estimated 2500-3000 CAF Class Members who received, or were eligible to receive, ELB/CFIS benefits.
[29] Payments to CAF Class Members will be based only on an eligible Class Member’s degree of disability as assessed pursuant to the Pension Act from 5% to 100%. The payments will range from approximately $2000 to $2500 for those with a 5% disability to $40,000‑$50,000 for those with a 100% disability. The amount is not a refund and does not relate to the amounts previously deducted from any CFIS or ELB benefit.
[30] As noted, payments to the WVA Class Members who were eligible for the WVA and received a disability pension between 2006 and 2012 would receive a lump sum of approximately $2000-$2500. Class Counsel explain that the relatively large size of the WVA Class, the relatively small impact of the deductions on individual WVA Class Members, and the administrative resources which would be required to determine their individual entitlement based on degree of disability, led to the agreement that the WVA Fund be distributed in equal lump sum payments.
[31] The payments will be made to a deceased Class Member’s estate where that Class Member has passed away since the 2016 Notice of Certification.
[32] The Settlement Agreement forgoes claims for pre-judgment and post-judgment interest on the amounts to be paid.
[33] The amounts to be paid to all Class Members will be exempt from income tax under paragraphs 81(1)(d) and 81(1)(d.1) of the Income Tax Act, RSC 1985, c 1 (5th Supp) [Income Tax Act]. No tax will be withheld from the payment and Class Members will not be required to report payments under the proposed Settlement on their income tax returns.
[34] The fees and disbursements of Class Counsel as approved by the Court will be deducted from each fund proportionally.
III. The Issues
[35] There are three issues to address:
Should the Court approve the Settlement Agreement? This entails consideration of whether the agreement is fair, reasonable and in the best interests of the class.
Should the Court approve an honorarium of $50,000 to Mr. Toth as the Representative Plaintiff (which will be paid out of the approved fees of Class Counsel)?
Should the Fee Agreement for Class Counsel be approved? This entails consideration of whether the amount of the legal fees and disbursements is fair and reasonable. The Fee Agreement should be considered only after determining whether to approve the proposed Settlement Agreement for the Class Members.
IV. Should the Settlement Agreement be approved?
A. The Jurisprudence with Respect to the Court’s Approval of Settlement Agreements
[36] In accordance with Rule 334.29 of the Rules, the Court must approve the settlement of a class action.
[37] The recent jurisprudence in this Court has confirmed the well-established test for approval of a settlement agreement in a class action. In Merlo v Canada, 2017 FC 533, [2017] FCJ No 773 (QL) [Merlo], Justice McDonald noted at para 16:
On approving a settlement, the test to be applied “is whether the settlement is fair and reasonable and in the best interests of the class as a whole” (Cardozo v Becton, Dickinson & Co, 2005 BCSC 1612, 145 ACWS (3d) 381 citing at para 16 Dabbs v Sun Life Assurance Co of Canada, [1998] OJ No 1598, (24 February 1998), Ontario, 96-CT-022862 (Ont Gen Div) at para 9, aff’d (1998), 40 O.R. (3d) 429, 5 CCLI (3d) 18 (Ont Gen Div); Haney Iron Works Ltd v Manulife Financial (1998), 169 DLR (4th) 565, 9 CCLI (3d) 253 (BCSC) at para 27; and Fakhri v Alfalfa's Canada, 2005 BCSC 1123, 47 BCLR (4th) 379 at para 8).
[38] In Condon v Canada, 2018 FC 522, 293 ACWS (3d) 697 [Condon], Justice Gagné elaborated on the test and the factors to consider in determining whether the test has been met, at paras 17-19:
[17] The test for approving a class action settlement is whether, in all of the circumstances, the settlement is fair, reasonable and in the best interests of the Class as a whole, taking into account the claims and defences in the litigation and any objections to the settlement by class members. However, the test is not whether the settlement meets the demands of a particular class member.
[18] A settlement need not be perfect (Châteauneuf v Canada, 2006 FC 286 at para 7). It need only fall “within a zone or range of reasonableness” (Ontario New Home Warranty Program v Chevron Chemical Company (1999), 46 OR (3d) 130 (Ont Sup Ct J) at para 89).
[19] In determining whether to approve a settlement, the Court may take into account factors such as:
a. The likelihood of recovery or likelihood of success;
b. The amount and nature of discovery, evidence or investigation;
c. Terms and conditions of the proposed settlement;
d. The future expense and likely duration of litigation;
e. The recommendation of neutral parties, if any;
f. The number of objectors and nature of objections;
g. The presence of arm’s length bargaining and the absence of collusion;
h. The information conveying to the Court the dynamics of, and the positions taken, by the parties during the negotiations;
i. The degree and nature of communications by counsel and the representative plaintiffs with class members during the litigation; and
j. The recommendation and experience of counsel.
(See Ford v F Hoffmann-La Roche Ltd (2005), 74 OR 3d 758 (Ont Sup Ct J) (QL) at para 117.)
[39] Justice Gagné noted at para 20 that the factors are guidelines; some may not be relevant at all and some may carry more weight than others.
B. The Relevant Factors
[40] The Court has considered all the relevant factors.
(1) The Likelihood of Recovery or Success
[41] The Plaintiff’s position is that the policy of deducting the disability benefits, which were based on the degree of disability, violated the Charter. However, the Plaintiff acknowledges that establishing liability and being awarded significant damages would pose challenges.
[42] Without this settlement, several years of continued litigation could follow, with no guarantee of success or recovery.
[43] As Class Counsel note, equality rights claims under subsection 15(1) of the Charter require the Plaintiff, first, to establish that they have been denied equal protection or benefit of the law, meaning that the law creates a distinction based on an enumerated or analogous ground and that the distinction creates a disadvantage by perpetuating prejudice or stereotyping (Withler v Canada (Attorney General), 2011 SCC 12 at paras 30-31, [2011] 1 SCR 396). The Defendant then bears the burden of justifying the denial of such rights as resulting from reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society under section 1 of the Charter (Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18 at para 42, [2018] 1 SCR 522). The establishment of such claims in the context of government benefit programs is an added challenge (see for example Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, 170 DLR (4th) 1).
[44] In Manuge v Canada, 2013 FC 341, [2014] 4 FCR 67 [Manuge 2013], which involved analogous discrimination claims advanced in relation to the deduction of Disability Pension amounts from other benefits, Justice Barnes commented at para 32 that the likelihood of the plaintiff establishing his Charter claims “was doubtful at best”.
[45] Even if the Court had found that the policy of deducting Disability Pension amounts violated the equality provisions of the Charter, the Court would still need to determine the appropriate limitation period. The Crown Liability and Proceedings Act, RSC 1985, c C-50 [CLPA], if applied, would limit the period of recovery to six years, and the application of provincial law would limit the period to two years. This litigation was launched in 2014 and the application of even the six year limitation period would leave out claims before 2008.
[46] As Class Counsel noted, even if the Court found that the Charter claims had been established, the recovery of all amounts deducted from benefit payments would not necessarily be the result. In Vancouver (City) v Ward, 2010 SCC 27 at para 24, [2010] 2 SCR 28 [Ward], the Supreme Court of Canada [SCC] held that after a Charter breach has been found, the Court must find that damages are appropriate and just to the extent that they serve a useful function or purpose before awarding them. The state may still establish that other considerations render Charter damages inappropriate or unjust (Ward at para 33). Even then, the damages must be fair to both the individual and the state. The Court may consider the effect of the diversion of public funds for large awards when determining the amount (Ward at para 53).
[47] In addition, if the litigation continued and was successful, but aggregate damages were denied, Class Members would be subject to individual assessments and claims processes. Class Counsel cautioned that individual examinations would likely require substantial resources and take several years to complete.
(2) Amount and Nature of Discovery Evidence and Investigation
[48] A voluminous amount of information was reviewed by Class Counsel to permit a full understanding of the facts, the potential claims and the financial impact of the deductions. The Defendant provided Class Counsel with electronic versions of 7,080 separate documents, totalling approximately 27,000 pages of records. Class Counsel obtained another 6,394 pages of records in response to Access to Information Requests.
[49] The review of these documents informed and assisted Class Counsel and the Plaintiff in negotiating the Settlement Agreement with a view to addressing the interests of the Class as a whole.
(3) The Terms and Conditions of the Proposed Settlement
[50] As noted above, the settlement is designed to compensate Class Members for the loss of dignity, pain and suffering associated with discrimination based on their degree of disability. The settlement will provide payments to veterans that had amounts deducted from their benefits and for veterans who may have been eligible to receive benefits under the WVA, ELB, and CFIS programs but did not receive those benefits because the policy of deducting Disability Pension amounts made them ineligible.
[51] The settlement will provide compensation for the harm of discrimination—not for the amounts deducted. A model which would provide restitution for the deducted amounts would exclude Class Members who may have been eligible for one of the benefits but did not apply or was not eligible to receive the benefits due to the policy of deducting Disability Pension benefits. In addition, calculating individual amounts would be a lengthy and complicated process. A restitution model would also result in the taxation of the payments for ELB Class Members.
[52] While the proposed settlement does not focus on the amounts deducted in individual cases, as Class Counsel explain, the $100 million total settlement is significant as it represents approximately 40% of total payments made to all recipients of the ELB, CFIS and WVA benefit programs during the relevant six-year period between April 2006 and May 2012.
[53] The settlement will provide payments to some Class Members that may not have had any deductions made. However, all Class Members are disabled and the payments are intended to address discriminatory practices based on their disability. On the other hand, some Class Members, who had deductions made over several years, may receive payments that fall far short of the amounts deducted. The Plaintiff and Class Counsel acknowledge that the settlement is not perfect for each Class Member but note that perfection is not the standard and that the settlement is fair and reasonable for the Class as a whole.
[54] Class Counsel explain that in their settlement negotiations, they initially contemplated that payments to CAF Veterans receiving ELB would be taxable because the payments were assumed to be a replacement for ELB income that was taxable under the Income Tax Act. Payments to WVA Class Members or CAF Veterans receiving CFIS, on the other hand, would not be taxable because WVA and CFIS payments are not taxable under the Income Tax Act.
[55] Class Counsel also explain that once the basis of the settlement and claims process was developed, they sought a determination from the Canada Revenue Agency [CRA] that payments based on the degree of disability, as proposed, would not be subject to taxation under the Income Tax Act. Class Counsel note that extensive discussions began in August 2018. The CRA advised Class Counsel in early December 2018, just before the hearing of this motion, that tax would not be withheld from payments under the proposed Settlement. In addition, Class Members will not be required to report payments under the proposed Settlement on their income tax returns.
[56] For purposes of settlement only, both parties made concessions. For example, the Defendant waived potential defences or barriers to recovery based on the limitation periods, section 1 of the Charter, the ability of estates to claim Charter damages, and individual assessments that could demonstrate that no damages had been incurred. Payments will be calculated easily and will be paid promptly, within approximately six to eight months of the approval of the Settlement Agreement to all Class Members, and without tax. This is particularly beneficial for elderly veterans that should not have to wait any longer to be compensated. The Plaintiff also made concessions, including narrowing the claims and foregoing pre-judgment and post-judgment interest.
(4) Recommendations and Experience of Counsel
[57] Class Counsel note that Gowling WLG, and Mr. Ruby in particular, have been active in class proceedings for over 25 years. Gowling WLG has represented litigants in more than 100 proceedings throughout Canada. Mr. Ruby has represented litigants in more than 20 separate class proceedings on a range of issues. In the present case, Gowling WLG has drawn on their counsel with expertise in pension, taxation, and estates and trust law.
[58] Mr. Ruby and other lawyers at Gowling WLG have been involved in this litigation since the beginning. Shortly after the Statement of Claim was filed, Mr. Drapeau of MDLO was engaged as co-counsel, bringing his experience in military and veterans’ law. Mr. Drapeau and members of his firm have communicated with hundreds of Class Members in both official languages.
[59] Class Counsel submit that their skill and expertise led to a positive outcome that recognizes the interests of Class Members and benefits the Class as a whole. Class Counsel add that they had no hesitation recommending that the Class Members accept the Settlement. Class Counsel note that the Settlement takes into account the litigation risks, including the risk of no recovery. Class Counsel acknowledge that the settlement represents a compromise from VAC’s highest internal estimates of the financial impact of the disability deductions on Class Members but notes that the total settlement amount, $100 million, falls within the range of VAC’s estimates. Class Counsel submits that the proposed Settlement provides fair and prompt compensation for Class Members, leaves no disabled veteran out and that payments will not be taxed.
(5) Expense and Likely Duration of Contested Litigation
[60] If the proposed Settlement Agreement is not approved, the litigation would continue and would likely be long, arduous and costly. Continuing the litigation could involve further discovery, the trial, possible appeals and the determination of individual claims. This could take three to five years.
[61] As the Plaintiff notes, although the Defendant consented to the certification of this Class Action, the Defendant filed a Statement of Defence which strongly disputes the claims. If the litigation continued, the Defendant could revert to its position. The efforts made to date to reach the proposed Settlement could be abandoned. Further compromises and collaboration to narrow or resolve the issues would not necessarily continue.
[62] As noted below, with respect to the fees and disbursements of Class Counsel, over 5000 hours have been spent to date by Class Counsel, which includes time spent by lawyers, paralegals and others. Many more hours would be spent if the litigation continued.
(6) Views of Class Members
(a) Support for the Settlement Agreement
[63] Class Counsel report that they received over one thousand responses to the proposed Settlement Agreement including phone calls, emails, and comments on the MDLO website. The majority of the responses expressed support. A sampling of the positive written statements illustrates that several Class Members welcome the resolution of this litigation and the payment they will receive and appreciate the time and effort of Class Counsel.
[64] For example, a Class Member from British Columbia wrote:
I have just read the news and re-read it again 3 more times. I am overwhelmed by this great news, I had to keep asking if it was real. I offer huge thanks to MDLO for all of their hard work and patience they exhibited during this time. I am so grateful that after more than 6 years we will be getting our illegally clawed back money returned to us.
[65] A Class Member from Alberta wrote:
The settlement means a lot to me as I am certain it does to all the Veterans who will be receiving their disability pension monies finally returned.
[66] Another Class Member from Alberta wrote:
All Veterans and direct families whom have been affected by the ELB clawbacks are certainly appreciative of your representing this case. Our hopes/aspirations and best wishes are with your team’s success in resolving this legal matter Michael Drapeau.
(b) Objections to the settlement
[67] Two Class Members appeared at the hearing to oppose the Settlement Agreement, one of whom also provided a written submission in advance. A third Class Member did not attend the hearing but expressed his concerns about the Settlement Agreement in a letter provided to the Court.
[68] Mr. Donald Leonardo provided a written submission to the Court on the eve of the hearing and he appeared at the hearing to voice his concerns. In his view, the proposed settlement is unreasonable and unfair to him and a “minority of outliers” of CAF Veterans because payments are determined by the degree of disability alone, without regard to the length of time during which benefits were reduced. The result is that the distribution of settlement funds will not be proportionate to the actual amounts “clawed back” from each Class Member. He asserted, although no evidence was provided to the Court, that $144,000 was deducted from his benefits over the years, but that he will receive only $35,000 from the settlement based on his disability which has been assessed at 70%.
[69] Mr. Leonardo criticized the settlement for focusing on simplicity and speed over fairness, and suggested that the calculations that would be necessary for a restitution model, i.e. a refund of the amounts deducted) are not as complex as Class Counsel submitted. He suggested that a restitution-based model be used instead and that it was not too late for the parties to renegotiate the Settlement Agreement.
[70] Mr. Martin Frechette also spoke at the hearing. Mr. Frechette similarly criticized the Settlement Agreement for failing to take into account the amount of each Class Member’s deductions or the length of time during which they experienced deductions. Mr. Frechette disputed Class Counsel’s assertion that every member of the ELB class had been disabled for the entire 6 year period. He also expressed the belief that the Notice of the Proposed Settlement did not make it clear to Class Members that they would not be compensated for the amount of the deductions. Mr. Frechette suggested that the additional complexity of a more individually tailored restitution process would not be insurmountable, as all the relevant information is available.
[71] Mr. Christopher Greenlaw wrote a letter to Class Counsel, which was provided to the Court, expressing his dissatisfaction with the proposed Settlement. Mr. Greenlaw indicated that he expects to receive $25,000 as a result of the settlement, based on his disability, which is assessed at 50%. He notes that this falls short of the $73,336 by which he asserts that his ELB benefit was reduced. He noted that he is part of a subset of the Class which will receive an inequitable and insufficient amount compared to their overall loss. Mr. Greenlaw expressed the view that the settlement should be closer aligned with the financial losses experienced. The three dissatisfied Class Members are of the view that the settlement discriminates against a portion of the class by forcing them to accept a greater financial loss than the majority. Mr. Leonardo and Mr. Frechette believe that the settlement discriminates against the veterans who were most disabled for the longest period of time, because they suffered the greatest deductions but will not necessarily see a proportionally greater recovery. They noted that a Class Member who had been subject to the deduction of pension benefits for a short period of time could receive the same amount of compensation as a person with a similar level of disability whose pension benefits were deducted for several years. They suggested that if the settlement is intended to address discrimination, it fails.
[72] Several other CAF Veterans raised similar concerns that the amount of individual entitlements resulting from the Settlement would not correspond to deducted amounts.
(c) Differences with Manuge
[73] Some Class Members, including Mr. Toth, received payments following the settlement of the class action in Manuge 2013 and are familiar with the Manuge 2013 settlement. The few Class Members who voiced their dissatisfaction appear to be of the view that the settlement in the present action should be similar in magnitude and approach. Comparisons with Manuge 2013 and previous decisions in that class proceeding are not appropriate and will only fuel their disappointment. There are real differences between this litigation and Manuge.
[74] Although the Manuge 2013 settlement also addressed the past practice of deducting Disability Pension amounts, the benefit programs at issue and the basis of the litigation and the settlement differ.
[75] The decision in Manuge v Canada, 2012 FC 499, [2013] 4 FCR 647 [Manuge 2012] challenged the Government’s policy of reducing long-term disability benefits under the Service Income Security Insurance Plan (SISIP) by the amounts payable to members under the Pension Act.
[76] The Manuge Class initially argued that the policy of deducting the amounts violated subsection 15(1) of the Charter and was not contractually justified. SISIP was administered through a contract between the Chief of Defence Staff and a private insurer, which provided that the monthly benefit would be reduced by “total monthly income benefits”. The contractual issue turned on whether the pension payments could be considered “income benefits”, as described in the SISIP policy.
[77] The contractual issue was resolved in Manuge 2012 through a motion under Rule 220 of the Federal Courts Rules. Justice Barnes concluded that the allowable reductions of “income benefits” in the SISIP policy did not include pension benefits because the Disability Pension was not intended as income replacement.
[78] Following this determination, the parties negotiated and agreed on a settlement. The Charter claims were not addressed. However, as noted above, Justice Barnes commented in Manuge 2013 at para 32, in the context of considering the litigation risk taken by Class Counsel:
This was also not a case where the Defendant’s liability approached a level of certainty. The claim to Charter relief was doubtful at best and the point of contractual interpretation that ultimately drove the settlement was neither a sure thing nor invulnerable to appeal.
[My emphasis]
[79] The present action involves Disability Pension deductions to the ELB, WVA and CFIS. Moreover, the claims are based on breach of the equality provisions of the Charter, not contract principles, and the settlement is crafted accordingly.
(d) The Objections of Class Members do not outweigh the other factors supporting the approval of the Settlement Agreement.
[80] The jurisprudence has established that perfection is not the standard for the Court to approve a settlement agreement and that the best interests of the class as a whole are considered (Merlo at para 18; Manuge 2013 at para 5). The Court’s role is to determine whether the proposed Settlement is “fair, reasonable and in the best interests of the class as a whole, not whether it meets the demands of a particular class member” (Dabbs v Sun Life Assurance Co of Canada, [1998] OJ No 1598 at para 11, 1998 CarswellOnt 5823).
[81] Although the Court acknowledges the concern of the objectors that a one size fits all approach may advantage some over others, this is not a reason to reject the whole Settlement Agreement, which appears to have wide support.
[82] As noted in Manuge 2013 at para 24:
[24] No class action settlement will ever be perfect. Recovery is always limited to those who meet the definition of a class member under the terms of certification. In cases like this involving thousands of unique individual claims, it is impossible and undesirable to treat every beneficiary equally in either financial or administrative terms. It is inevitable that a settlement like this one will leave a few people behind or benefit some ahead of others. In this case those distinctions are of insufficient weight to reject the proposed settlement.
[83] With respect to Mr. Leonardo’s suggestion that the terms of the settlement could be revised, the Court cannot tinker with its terms and conditions or direct the parties to revisit certain aspects of the agreement, which is the result of a long negotiation process informed by a voluminous record. In Manuge 2013, Justice Barnes noted at paras 5 and 6:
[5] It is not open to the reviewing Court to rewrite the substantive terms of a proposed settlement nor should the interests of individual class members be assessed in isolation from the interests of the entire class: see Dabbs v Sun Life Assurance Co. of Canada, [1998] OJ no 1598 at paras 10-11, (available on QL).
[6] It will always be a particular concern of the Court that an arms-length settlement negotiated in good faith not be too readily rejected. The parties are, after all, best placed to assess the risks and costs (financial and human) associated with taking complex class litigation to its conclusion. The rejection of a multi-faceted settlement like the one negotiated here also carries the risk that the process of negotiation will unravel and the spirit of compromise will be lost.
[84] In Merlo, Justice MacDonald reiterated the same principle at para 17, “[w]hile the court has the power to approve or reject a settlement, it may not modify or alter a settlement (Haney Iron Works, supra at para 22; Dabbs, supra at para 10).”
[85] As Class Counsel explained, a settlement based on quantifying the amounts deducted would require a lengthy claims process and would require an examination of the Class Member’s income from several sources. In addition, some of the amounts received would be taxable. This approach would also leave out many Class Members who did not have deductions from their benefits made based on the amount of their disability pensions because they were not in receipt of such benefits due to the policy.
(7) The Presence of Good Faith/ Absence of Collusion
[86] The parties explain that their negotiations to settle this litigation began in August 2017 and continued for a year with several proposals considered and revised. The parties describe the negoti