Girard v. Canada (Attorney General)

Girard v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2022-04-21
Neutral citation
2022 FC 578
File numbers
T-1269-21
Notes
Digest
Decision Content
Date: 20220421
Docket: T-1269-21
Citation: 2022 FC 578
Ottawa, Ontario, April 21, 2022
PRESENT: The Hon Mr. Justice Henry S. Brown
BETWEEN:
JASON GIRARD
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Nature of the matter
[1] This is an application for judicial review of a decision by the Government of Canada Pension Centre [Pension Centre], dated July 5, 2021 [Decision] pursuant to the Royal Canadian Mounted Police Superannuation Act, RSC, 1985, c. R-11 [Superannuation Act]. At issue is whether the Applicant, a member of the Royal Canadian Mounted Police [RCMP] found to have contravened the RCMP’s Code of Conduct and directed to resign within 14 days or in default, dismissed, is entitled to the “Transfer Value” of his pension entitlements or a potential annuity (pension) in the discretion of the Treasury Board. The Pension Centre held the Applicant is entitled only to a return of contributions with interest.
II. Facts
[2] The Applicant was an RCMP Constable who was found by the RCMP’s Conduct Board on November 20, 2020, to have contravened five provisions of the Code of Conduct established under the Royal Canadian Mounted Police Act, RSC, 1985, c. R-10 [RCMP Act].
[3] As a consequence, the Conduct Board acting under paragraph 45(4)(b) of the RCMP Act imposed the following conducts measures on the Applicant:
Allegations 1 to 3: a reprimand and the forfeiture of 20 days’ pay.
Allegations 4 and 5: I direct Constable Girard to resign. If he fails to do so within 14 days, then I direct that he is to be dismissed.
[4] The Applicant resigned on December 3, 2020, within the 14-day grace period allowed by the Conduct Board.
[5] He subsequently received two counselling packages from the Pension Centre advising him of his rights under the Superannuation Act.
[6] The first counselling package dated December 11, 2020, said he had two options: a Deferred Annuity payable at age 60 (worth an estimated $1,482.21 per month), or a Transfer Value payable immediately with an estimated worth $382,894.70 gross of taxes. The Applicant elected the lump-sum payment of the Transfer Value. He therefore withdrew an appeal of the Conduct Board’s decision he had filed previously, because he knew he could not collect the Transfer Value while he had an ongoing appeal.
[7] The Respondent says the Pension Centre’s advice regarding his possible entitlement to a Transfer Value was based on its misunderstanding of the Applicant’s pension entitlement.
[8] Therefore on March 2, 2021, the Pension Centre sent the Applicant a second counselling package this time applying subsection 11(4) of Superannuation Act to the Applicant’s pension entitlement. The Pension Centre told the Applicant he had two options: either a return of contributions (with interest) under subsection 11(4)(a) estimated at $104,797.27 gross of taxes, or a potential lifetime annuity as determined by the Treasury Board under subsection 11(4)(b). This counselling package did not mention a Transfer Value payment. The Applicant called the Pension Centre to ask them to “correct the amount”, to no avail.
[9] The Applicant was informed of his rights to have independent legal advice. The Applicant needed the money, and opted for a return of contributions with interest by signed election dated March 11, 2021. He expressly waived his rights to a potential lifetime annuity as determined by the Treasury Board.
[10] On June 2, 2021, the Applicant disputed the Pension Centre’s application of subsection 11(4), claiming he was entitled to the Transfer Value of his pension. In the alternative, he asked the Treasury Board to consider a potential lifetime annuity.
[11] The Pension Centre considered the matter and by Decision dated July 5, 2021 maintained its position on the application of subsection 11(4) holding he was only entitled to a return of contributions with interest. It also affirmed its earlier decision not to send the matter to the Treasury Board because the Applicant had waived that right in his signed election dated March 11, 2021. This Decision is the subject of this application for judicial review.
III. Decision under review
[12] The Pension Centre’s Decision states in pertinent parts:
In December 2020, a retirement counselling package was mailed to you. This package was prepared based on your reason for termination being a voluntary discharge. In January 2021, an amended package was sent, as the Pension Centre was advised that your termination should be treated as misconduct. This is based on the fact that your resignation was following a disciplinary hearing, where the Conduct Board Decision directed you to resign under the RCMP Act, pursuant to subsection 45(4). Therefore, your employment ceased as a result of misconduct and subsection 11(4) of the RCMP Superannuation Act was applied.
On March 11, 2021, you signed an option for a Return of Contributions. This benefit was paid to you on March 25, 2021. As noted on the Pension Benefit Option Form you signed on March 11, opting for a Return of Contributions signifies that you choose to forego the opportunity for a lifetime annuity as determined by Treasury Board.
IV. Issues
[13] The Applicant submits the issue are:
Did the Pension Centre unreasonably deny the Applicant a Transfer Value benefit in accordance with section 12.1 of the Superannuation Act?
In the alternative, did the Pension Centre unreasonably interpret subsection 11(4) of the Superannuation Act to include RCMP members who have been ordered to resign?
In the further alternative, did the Pension Centre unreasonably refuse to send the Applicant’s request to Treasury Board to exercise its discretion to grant the Applicant an increased pension benefit under paragraph 11(4)(b) of the Superannuation Act?
[14] The Respondent submits the issues are:
Did the Pension Centre unreasonably determine that subsection 11(4) of the Superannuation Act applied to the Applicant because the Conduct Board directed him to resign from the RCMP pursuant to subsection 45(4) of the RCMP Act?
In the alternative, did the Pension Centre unreasonably fail to send the matter to the Treasury Board to exercise its discretion under paragraph 11(4)(b) of the Superannuation Act?
[15] At issue is whether the Decision is reasonable.
V. Standard of Review
[16] Both the Applicant and the Respondent submit the standard of review is reasonableness, and I agree.
[17] This case is fundamentally about statutory interpretation. This means the Court should begin by examining the text, context, and purpose of the legislation to understand the “lay of the land” and then examine the Pension Centre’s decision to analyze whether its interpretation of the provision is reasonable, see Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 [per Stratas JA, Rennie and MacTavish JJA concurring] at paras 16-19, leave to appeal to SCC granted, no. 39855 (2022-03-03):
[16] Hillier [Hillier v Canada (Attorney General), 2019 FCA 44, ed.] begins by reminding reviewing courts of three basic things they should appreciate when conducting reasonableness review. First, in many cases, administrators may have a range of interpretations of legislation open to them based on the text, context and purpose of the legislation. Second, in particular cases, administrators may have a better appreciation of that range than courts because of their specialization and expertise. And, third, the legislation—the law on the books that reviewing courts must follow—gives administrators the responsibility to interpret the legislation, not reviewing courts.
[17] For these reasons, Hillier tells reviewing courts to conduct themselves in a way that gives administrators the space the legislator intends them to have, yet still hold them accountable. Reviewing courts can do this by conducting a preliminary analysis of the text, context and purpose of the legislation just to understand the lay of the land before they examine the administrators’ reasons. But the lay of the land is as far as they should go. They should not make any definitive judgments and conclusions themselves. That would take them down the road of creating their own yardstick and measuring the administrator’s interpretation to make sure it fits.
[18] Instead, Hillier recommends (at para. 16) that a reviewing court should “focus on the administrator’s interpretation, noting what the administrator invokes in support of it and what the parties raise for or against it”, trying to understand where the administrator was coming from and why it ruled the way it did: Hillier at para. 16.
[19] Under this approach, the reviewing court does not act in an “external” way, i.e., “arrive at a definitive conclusion about the best way to read the statutory provision under review before considering how the administrator’s interpretation matched up with [the] preferred reading”. Rather, as Professor Daly has observed, the reviewing court acts in an “internal” way, i.e., “a relatively cursory examination of the provision at issue, with a view to analyzing the robustness of the [administrator’s] interpretation”. See Paul Daly, “Waiting for Godot: Canadian Administrative Law in 2019” (online: https://canlii.ca/t/t23p at 11).
[18] Regarding reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard, noting the “facts and law” constrain decision-makers:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[19] In the words of the Supreme Court of Canada in Vavilov, a reviewing court must be satisfied the decision-maker’s reasoning is justified in relation to the “constellation of law and facts” that are relevant to the decision. Vavilov also instructs that elements of the legal and factual contexts of a decision operate as constraints on the decision maker:
[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.
[105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.
[Emphasis added]
[20] Vavilov summarizes the constraining aspects of the law and facts by requiring administrative decisions to fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”:
[86] Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir, at paras. 47-49. In Dunsmuir, this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: para. 47. Reasonableness, according to Dunsmuir, “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid. In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.
VI. Relevant sections of statute law
[21] Although subsection 11(4) is the main focus of the submissions in this case, section 11 of the Superannuation Act in its entirety states:
Benefits payable on retirement
Prestations payables à la retraite
11 (1) A contributor who, having reached retirement age, ceases to be a member of the Force for any reason other than disability or misconduct is entitled to a benefit determined as follows:
11 (1) Un contributeur qui, après avoir atteint l’âge de retraite, cesse d’être membre de la Gendarmerie pour toute raison autre que l’invalidité ou l’inconduite, a droit à une prestation déterminée comme suit:
(a) if he or she has served in the Force for a period that is less than the period prescribed by the regulations for the purposes of this paragraph, he or she is entitled to
a) s’il a servi dans la Gendarmerie pendant une période inférieure à la période réglementaire prévue pour l’application du présent alinéa, il a droit:
(i) a return of contributions, or
(i) soit à un remboursement de contributions,
(ii) a cash termination
(ii) soit à une allocation de cessation en espèces, si elle est d’un montant supérieur;
allowance, whichever is the greater; and
blanc
(b) if he or she has served in the Force for a period equal to or greater than the period prescribed by the regulations for the purposes of paragraph (a), he or she is entitled to an immediate annuity.
b) s’il a servi dans la Gendarmerie pendant une période égale ou supérieure à la période réglementaire prévue pour l’application de l’alinéa a), il a droit à une annuité immédiate.
Retirement due to disability
Retraite attribuable à l’invalidité
(2) A contributor who is compulsorily retired from the Force by reason of having become disabled is entitled to a benefit determined as follows:
(2) Un contributeur qui est obligatoirement retraité de la Gendarmerie du fait qu’il est devenu invalide a droit à une prestation déterminée comme suit:
(a) if he or she has to his or her credit a period of pensionable service less than the period prescribed by the regulations for the purposes of this paragraph, he or she is entitled to
a) s’il compte à son crédit une période de service ouvrant droit à pension inférieure à la période réglementaire prévue pour l’application du présent alinéa, il a droit:
(i) a return of contributions, or
(i) soit à un remboursement de contributions,
(ii) a cash termination allowance,
(ii) soit à une allocation de cessation en espèces, si elle est d’un montant supérieur;
whichever is the greater; and
blanc
(b) if he or she has to his or her credit a period of pensionable service equal to or greater than the period prescribed by the regulations for the purposes of paragraph (a), he or she is entitled to an immediate annuity.
b) s’il compte à son crédit une période de service ouvrant droit à pension égale ou supérieure à la période réglementaire prévue pour l’application de l’alinéa a), il a droit à une annuité immédiate.
Retirement to promote economy or efficiency
Retraite motivée par un souci d’économie ou d’efficacité
(3) A contributor who, not having reached retirement age, is compulsorily retired from the Force to promote economy or efficiency is entitled to a benefit determined as follows:
(3) Un contributeur qui, avant d’avoir atteint l’âge de retraite, est obligatoirement retraité de la Gendarmerie pour favoriser l’économie ou l’efficacité, a droit à une prestation déterminée comme suit:
(a) if he or she has served in the Force for a period that is less than the period prescribed by the regulations for the purposes of this paragraph, he or she is entitled to a return of contributions;
a) s’il a servi dans la Gendarmerie pendant une période inférieure à la période réglementaire prévue pour l’application du présent alinéa, il a droit à un remboursement de contributions;
(b) if he or she has served in the Force for a period equal to or greater than the period prescribed by the regulations for the purposes of paragraph (a) but less than the period prescribed by the regulations for the purposes of paragraph (c), he or she is entitled to
b) s’il a servi dans la Gendarmerie pendant une période égale ou supérieure à la période réglementaire prévue pour l’application de l’alinéa a), mais inférieure à celle prévue pour l’application de l’alinéa c), il a droit, à son choix, selon le cas:
(i) [Repealed, 2003, c. 26, s. 45]
(i) [Abrogé, 2003, ch. 26, art. 45]
(ii) a deferred annuity, or
(ii) à une annuité différée,
(iii) in the case of a contributor whose retirement is due to a reduction in the total number of members of the Force, and in any other case in the discretion of the Treasury Board, an immediate annuity, reduced, until the time that the contributor reaches sixty-five years of age but not after that, by five per cent for each full year not exceeding six by which the period of service in the Force is less than the period prescribed by the regulations for the purposes of paragraph (c),
(iii) dans le cas d’un contributeur dont la retraite résulte d’une réduction du nombre total des membres de la Gendarmerie, et dans tout autre cas, selon la discrétion du Conseil du Trésor, à une annuité immédiate, réduite, jusqu’à ce que le contributeur atteigne l’âge de soixante-cinq ans mais non par la suite, de cinq pour cent pour chaque année entière sans excéder six par laquelle la période de son service dans la Gendarmerie est inférieure à la période réglementaire prévue pour l’application de l’alinéa c);
at his or her option; and
blanc
(c) if he or she has served in the Force for a period equal to or greater than the period prescribed by the regulations for the purposes of this paragraph, he or she is entitled to an immediate annuity.
c) s’il a servi dans la Gendarmerie pendant une période égale ou supérieure à la période réglementaire prévue pour l’application du présent alinéa, il a droit à une annuité immédiate.
Dismissal for misconduct
Renvoi pour inconduite
(4) A contributor who is compulsorily retired from the Force by reason of misconduct is entitled to
(4) Un contributeur qui est obligatoirement retraité de la Gendarmerie pour motif d’inconduite a droit:
(a) a return of contributions; or
a) soit à un remboursement de contributions;
(b) in the discretion of the Treasury Board, the whole or any part specified by the Treasury Board of any benefit to which he or she would have been entitled under this section if
b) soit, selon la discrétion du Conseil du Trésor, à la totalité ou à une partie spécifiée par le Conseil du Trésor de toute prestation à laquelle il aurait eu droit selon le présent article, si:
(i) in the case of a contributor who at the time of his or her retirement had reached retirement age, he or she had ceased to be a member of the Force for any reason other than disability or misconduct, or
(i) dans le cas d’un contributeur qui, à la date de sa retraite, avait atteint l’âge de retraite, il avait cessé d’être membre de la Gendarmerie pour quelque motif autre que l’invalidité ou l’inconduite,
(ii) in the case of a contributor who at the time of his or her retirement had not reached retirement age, he or she had been compulsorily retired from the Force to promote economy or efficiency due to a reduction in the total number of members of the Force,
(ii) dans le cas d’un contributeur qui, à la date de sa retraite, n’avait pas atteint l’âge de retraite, il avait été obligatoirement retraité de la Gendarmerie pour favoriser l’économie ou l’efficacité à cause d’une réduction du nombre total des membres de la Gendarmerie,
except that in no case shall the capitalized value of the benefit be less than the amount of the return of contributions referred to in paragraph (a).
sauf que, dans aucun cas, la valeur capitalisée de cette prestation ne peut être inférieure au montant du remboursement de contributions, mentionné à l’alinéa a).
Retirement for other reasons
Autres motifs
(5) A contributor who, not having reached retirement age, ceases to be a member of the Force for any reason other than disability, misconduct or to promote economy or efficiency is entitled to a benefit determined as follows:
(5) Le contributeur qui cesse d’être membre de la Gendarmerie, sans avoir atteint l’âge de retraite, pour quelque motif autre que l’invalidité, l’inconduite ou le souci d’économie ou d’efficacité, a droit à une prestation déterminée comme suit:
(a) if the contributor has served in the Force for a period that is less than the period prescribed by the regulations for the purposes of this paragraph, the contributor is entitled to a return of contributions;
a) s’il a servi dans la Gendarmerie pendant une période inférieure à la période réglementaire prévue pour l’application du présent alinéa, il a droit à un remboursement de contributions;
(b) if the contributor has served in the Force for a period equal to or greater than the period prescribed by the regulations for the purposes of paragraph (a) but less than the period prescribed by the regulations for the purposes of paragraph (c), the contributor is entitled to a deferred annuity;
b) s’il a servi dans la Gendarmerie pendant une période égale ou supérieure à la période réglementaire prévue pour l’application de l’alinéa a), mais inférieure à celle prévue pour l’application de l’alinéa c), il a droit à une annuité différée;
(c) if the contributor has served in the Force for a period equal to or greater than the period prescribed by the regulations for the purposes of this paragraph but less than the period prescribed by the regulations for the purposes of paragraph (d), the contributor is entitled to an annual allowance payable immediately on the contributor ceasing to be a member of the Force reduced by five per cent for each full year by which
c) s’il a servi dans la Gendarmerie pendant une période égale ou supérieure à la période réglementaire prévue pour l’application du présent alinéa, mais inférieure à celle prévue pour l’application de l’alinéa d), il a droit à une allocation annuelle payable au moment où il cesse d’être membre de la Gendarmerie et diminuée de cinq pour cent pour chaque année entière par laquelle:
(i) the period of the contributor’s service in the Force is less than the period prescribed by the regulations for the purposes of paragraph (d), or
(i) la durée de son service dans la Gendarmerie est inférieure à la période réglementaire prévue pour l’application de l’alinéa d),
(ii) the contributor’s age at the time of retirement is less than the retirement age applicable to the contributor’s rank,
(ii) son âge à sa retraite est inférieur à l’âge de retraite applicable à son grade, si ce chiffre est inférieur;
whichever is the lesser; and
blanc
(d) if the contributor has served in the Force for a period equal to or greater than the period prescribed by the regulations for the purposes of this paragraph, the contributor is entitled to an immediate annuity.
d) s’il a servi dans la Gendarmerie pendant une période égale ou supérieure à la période réglementaire prévue pour l’application du présent alinéa, il a droit à une annuité immédiate.
[Emphasis added]
[Je souligne]
[22] Section 12.1 of the Superannuation Act states:
Transfer value
Valeur de transfert
12.1 (1) Despite any other provision of this Act, except subsection 24.1(6), but subject to the regulations, a contributor who has ceased to be a member of the Force, has served in the Force for a period equal to or greater than the period prescribed by the regulations and is not entitled to an immediate annuity is entitled, in the place of any other benefit under this Act to which the contributor would otherwise be entitled in respect of the pensionable service that the contributor has to their credit, to a transfer value that is payable to the contributor in accordance with subsection (2).
12.1 (1) Malgré les autres dispositions de la présente loi, à l’exception du paragraphe 24.1(6), le contributeur qui cesse d’être membre de la Gendarmerie et qui y a servi pendant une période égale ou supérieure à la période réglementaire mais n’a pas droit à une annuité immédiate a droit, sous réserve des règlements, en remplacement des prestations auxquelles il aurait par ailleurs droit en vertu de la présente loi à l’égard du service ouvrant droit à pension qu’il compte à son crédit, à une valeur de transfert qui lui est versée conformément au paragraphe (2).
[Emphasis added]
[Je souligne]
[23] Subsection 45(4) of the RCMP Act states:
Conduct measures
Mesure disciplinaire
45(4) If a conduct board decides that an allegation of a contravention of a provision of the Code of Conduct by a member is established, the conduct board shall impose any one or more of the following conduct measures on the member, namely,
45(4) Si le comité de déontologie décide qu’un membre a contrevenu à l’une des dispositions du code de déontologie, il prend à son égard une ou plusieurs des mesures disciplinaires suivantes:
(a) recommendation for dismissal from the Force, if the member is a Deputy Commissioner, or dismissal from the Force, if the member is not a Deputy Commissioner,
a) il recommande que le membre soit congédié de la Gendarmerie, s’il est sous-commissaire, ou, s’il ne l’est pas, le congédie de la Gendarmerie;
(b) direction to resign from the Force and, in default of resigning within 14 days after being directed to do so, recommendation for dismissal from the Force, if the member is a Deputy Commissioner, or dismissal from the Force, if the member is not a Deputy Commissioner, or
b) il ordonne au membre de démissionner de la Gendarmerie, et si ce dernier ne s’exécute pas dans les quatorze jours suivants, il prend à son égard la mesure visée à l’alinéa a);
(c) one or more of the conduct measures provided for in the rules.
c) il impose une ou plusieurs des mesures disciplinaires prévues dans les règles.
[Emphasis added]
[Je souligne]
VII. Analysis
[24] Although the issue is whether the Decision is reasonable, I will address each of the Applicant’s arguments. In this connection, the Applicant says he is entitled to the Transfer Value of his pension entitlements because of section 12.1 of the Superannuation Act, which was relatively recently amended and which applies, according to its opening words, “Despite any other provision of this Act”. In the alternative, he says subsection 11(4) does not apply to an RCMP member who resigned within the 14 days allowed by the Conduct Board’s ruling. i.e., subsection 11(4) applies to a member who is dismissed but not one who resigns even by direction. In the further alternative, he claims the right to have the Treasury Board (not the Pension Centre which made the Decision in the case at bar) determine what if any potential annuity (pension) he might receive.
[25] Because this case turns on the RCMP’s Superannuation Act, and because of its complexity and the many different benefits it may afford, it is useful per Mason at para 17 to set out the ‘lay of the land’ in terms of benefits available. This legislation sets out six different kinds of entitlements, as outlined by the Applicant and not disputed by the Respondent:
1) Return of contributions: This is the total amount of payments made over time by a contributor (such as the Applicant) towards his or her pension, repaid by the Government to the contributor with interest. It does not include payments into the pension fund made by the Government, which remain in the pension fund. Subsection 9(1) defines return of contributions:
“a return of
(a) the amount paid by the contributor into the Superannuation Account or the Royal Canadian Mounted Police Pension Fund but not including any amount so paid pursuant to subsection 39(7) of the Public Service Superannuation Act, and
(b) any amount paid by him or her into any other account or fund, together with interest, if any, that has been transferred to the Superannuation Account or the Royal Canadian Mounted Police Pension Fund,
to the extent that the amount remains to his or her credit in the Superannuation Account or the Royal Canadian Mounted Police Pension Fund, together with interest, if any, calculated pursuant to subsection (6). (remboursement de contributions)”
A return of contributions is what the Respondent says the Applicant is entitled to under subsection 11(4)(a). In this case, it amounts to an estimated $104,797.27 gross of taxes.
2) Cash termination allowance: This is essentially one month’s pay per year of service. Subsection 9(1) defines cash termination allowance as:
“an amount equal to one month’s pay for each year of pensionable service to the credit of the contributor, computed on the basis of the rate of pay authorized to be paid to him or her at the time he or she ceases to be a member of the Force, minus an amount equal to the amount by which
(a) the total amount the contributor would have been required to contribute to the Superannuation Account or the Royal Canadian Mounted Police Pension Fund up to the time he or she ceases to be a member of the Force, other than interest or charges for payments by instalments, in respect of service after 1965, if he or she had contributed on the basis of the rate set forth in subsection 5(1) as it read on December 31, 1965,
exceeds
(b) the total amount the contributor was required to contribute to the Superannuation Account or the Royal Canadian Mounted Police Pension Fund up to the time he or she ceases to be a member of the Force, other than interest or charges for payments by instalments, in respect of service after 1965; (allocation de cessation en espèces)”
This benefit is not in issue in this case.
3) Immediate annuity: This is a pension (or annuity) payable immediately. Subsection 9(1) defines immediate annuity as:
“an annuity that becomes payable to the contributor immediately on his becoming entitled thereto; (annuité immédiate)”
It is not in issue in this case.
4) Deferred annuity: This is the total pension (depending on length of service, salary etc.) payable to a contributor when he or she reaches age 60. It is defined in subsection 9(1) as:
“an annuity that becomes payable to the contributor at the time he reaches sixty years of age; (annuité différée)”
This is not in issue in this case.
5) Annual allowance: This is an immediate pension but reduced 5% for each year the contributor is short of the age and service milestones for a full pension. This is not in issue in this case.
6) Transfer Value: This is the actuarial-based present day lump sum value of the deferred pension which the contributor might be paid over his or her estimated lifetime. It is defined in subsection 9(1) as:
“a lump sum amount, representing the value of the contributor’s pension benefits, as determined in accordance with the regulations. (valeur de transfert)”
A Transfer Value lump sum payment is what the Applicant claims under subsection 12.1(1). In this case, the Transfer Amount amounts to an estimated $382,894.70 gross of taxes.
A. Did the Pension Centre unreasonably deny the Applicant a transfer value benefit in accordance with section 12.1 of the Superannuation Act?
[26] The Pension Centre disqualified the Applicant from a Transfer Value because of its reading of subsection 11(4) of the Superannuation Act. The Applicant submits the Pension Centre unreasonably relied on subsection 11(4) of the Superannuation Act because subsection 12.1(1) states a Transfer Value is available to him “despite any other provision of this Act”, i.e., the Superannuation Act. I agree.
[27] The constraining law in this connection per Vavilov at paras 31-33, 86, and 104-105 (cited above), is subsection 12.1(1) of the Superannuation Act. Subsection 12.1(1) of the Superannuation Act establishes a wide entitlement to Transfer Value payments provided only five (5) preconditions are met:
12.1 (1) Despite any other provision of this Act, [1] except subsection 24.1(6), but [2] subject to the regulations, a contributor who has [3] ceased to be a member of the Force, has [4] served in the Force for a period equal to or greater than the period prescribed by the regulations and [5] is not entitled to an immediate annuity is entitled, in the place of any other benefit under this Act to which the contributor would otherwise be entitled in respect of the pensionable service that the contributor has to their credit, to a transfer value that is payable to the contributor in accordance with subsection (2).
[Emphasis as added by Applicant]
[28] Notably, section 12.1 provides a contributor such as the Applicant, “despite any other provision of this Act”, “is entitled” to a Transfer Value “in the place of any other benefit under this Act to which the contributor would otherwise be entitled in respect of the pensionable service that the contributor has to their credit” – in this case, in place of a return of contributions set out in the Pension Centre’s Decision which relied on subsection 11(4).
[29] In my respectful view the Applicant by the legislation is entitled to a Transfer Value because he meets all five preconditions set out in subsection 12.1(1) of the Superannuation Act:
Subsection 24.1(6) must not apply: this subsection concerns pension transfer agreements with another eligible employer, so that when RCMP members transfer to a certain employers they may transfer their pension with them.The Applicant was not transferring to another eligible employer, so he meets this precondition.
The entitlement is subject to the regulations: the Royal Canadian Mounted Police Superannuation Regulations, CRC, c. 1393 [Superannuation Regulations] require the member not be eligible for an immediate annuity as of the date of their election [section 55(1) of the Superannuation Regulations]. The regulations also require that a member elect to take their transfer value within one year of being given the option [sections 56-57 of the Superannuation Regulations]. The Applicant was not old enough to qualify for an immediate annuity, and made his election within the one-year period. He meets this condition.
The contributor must cease to be a member of the Force: in other words, an RCMP member cannot take their transfer value and keep working for the RCMP.The Applicant is no longer a member of the Force. He meets this condition.
The member must have the required length of service: the prescribed period is two years, and the Applicant had just over ten years’ service. He meets this condition.
The member must not be entitled to an immediate annuity: the Applicant was not entitled to an immediate annuity. He meets this condition.
[30] I add the Respondent does not dispute the Applicant meets all five conditions of subsection 12.1(1).
[31] The opening words of section 12.1 are of critical importance in terms of constraining law in this case: “Despite any other provision of this Act, except subsection 24.1(6), but subject to the regulations”. These words are a relatively recent addition to the Superannuation Act. Parliament amended section 12.1 of the Superannuation Act to include these words in 2012.
[32] The Applicant submits, and I agree that the addition of these ‘notwithstanding’ words removes any ambiguity between it and any other provision of the Superannuation Act, and establishes subsection 12.1 applies notwithstanding “any other provision of the” Superannuation Act. With respect, this includes subsection 11(4). In particular, if there was any doubt, these notwithstanding words clearly and unambiguously oust the possible application of subsection 11(4).
[33] Moreover, paying the Transfer Value of a pension to a contributor (even one who has left after misconduct) is consistent with the broader interpretative principle that benefits-conferring legislation should be interpreted broadly and liberally in favour of the those entitled to the benefits of that legislation, see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at para 36 [Rizzo]; National Automobile, Aerospace, Transportation and General Workers Union of Canada (Caw-Canada, Local 2182) v Canada (Attorney General), 2007 FC 449 [per Lemieux J] at paras 109-113 [National Automobile].
[34] The Superannuation Act’s provision of deferred pensions and by extension Transfer Value (the commuted present day value of a deferred pension) creates a defined benefit pensions. Very critically, defined benefit pensions “are a form of deferred compensation”, see IBM Canada Limited v Waterman, 2013 SCC 70 at para 4:
[4] In my view, employee pension payments, including payments from a defined benefit plan as in this case, are a type of benefit that should generally not reduce the damages otherwise payable for wrongful dismissal. Both the nature of the benefit and the intention of the parties support this conclusion. Pension benefits are a form of deferred compensation for the employee’s service and constitute a type of retirement savings. They are not intended to be an indemnity for wage loss due to unemployment. The parties could not have intended that the employee’s retirement savings would be used to subsidize his or her wrongful dismissal. There is no decision of this Court in which a non-indemnity benefit to which the plaintiff has contributed, such as the pension benefits in issue here, has ever been deducted from a damages award.
[Emphasis added]
[35] It is equally well established that explicit statutory language is required to divest an applicant pension plan contributor generally, and this Applicant in particular, of his right to the deferred compensation he earned and would otherwise enjoy: see GMAC Commercial Credit Corporation - Canada v T.C.T. Logistics Inc., 2006 SCC 35 at para 51 [GMAC Commercial Credit]:
[51] I