Authorson v. Canada (Attorney General), (2003) 175 O.A.C. 363 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court of Canada
• Case Date: July 17, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 175 O.A.C. 363 (SCC);2003 SCC 39;JE 2003-1389;227 DLR (4th) 385;66 OR (3d) 734;[2003] 2 SCR 40;4 Admin LR (4th) 167;[2003] ACS no 40;109 CRR (2d) 220;124 ACWS (3d) 62;[2003] SCJ No 40 (QL);175 OAC 363;306 NR 335

Authorson v. Can. (A.G.) (2003), 175 O.A.C. 363 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] O.A.C. TBEd. JL.043

Attorney General of Canada (appellant) v. Joseph Patrick Authorson, deceased, by his Litigation Administrator, Peter Mountney and by his Litigation Guardian, Lenore Majoros (respondent)

(29207; 2003 SCC 39; 2003 CSC 39)

Indexed As: Authorson v. Canada (Attorney General)

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

July 17, 2003.

Summary:

Authorson was a disabled war veteran whose pension was administered for him by the federal Department of Veterans Affairs (DVA) because he was incapable of doing so himself. During the years the DVA administered the funds, the DVA neither invested the funds nor accrued interest on them. Authorson, as representative plaintiff in a class action, sought a declaration that the DVA's failure to invest or earn interest on the funds constituted a breach of the fiduciary duty owed by the Crown to him and other members of the class. The Crown argued that s. 5.1(4) of the Department of Veterans Affairs Act barred any claim for interest before 1990. Section 5.1(4) provided that "no claim shall be made after this subsection comes into force for or on account of interest on moneys held or administered by the Minister during any period prior to January 1, 1990 pursuant to subsection 41(1) of the Pension Act, subsection 15(2) of the War Veterans Allowance Act or any regulations made under section 5 of this Act".

The Ontario Superior Court, in a decision reported [2000] O.T.C. 719, held that the Crown breached a fiduciary duty owed to the disabled veterans by not paying interest on the funds. The court held that s. 5.1(4) was inoperative under the Canadian Bill of Rights, stating that s. 1(a) guaranteed that any deprivation of the enjoyment of property must occur through due process of law, and that s. 2(e) guaranteed a fair hearing in accordance with the principles of fundamental justice. The Crown appealed.

The Ontario Court of Appeal, in a decision reported 157 O.A.C. 278, dismissed the appeal. The court agreed that the Crown had breached a fiduciary duty. The court considered the due process protection of property rights in s. 1(a) of the Bill of Rights, but declined to hold whether the provision conferred substantive protections in addition to procedural protections. The court concluded that passage of the expropriative legislation (i.e., s. 5.1(4)) violated Authorson's due process rights because he had been denied notice and an opportunity to contest the legislation. The Court of Appeal also found this to be a violation of s. 2(e), which provided fair hearing rights. The Crown appealed, arguing that s. 5.1(4) was not inconsistent with ss. 1(a) and 2(e) of the Bill of Rights. On appeal the Crown did not dispute the fiduciary duty issue.

The Supreme Court of Canada allowed the appeal. The court stated that Authorson and the class of disabled veterans he represented were owed decades of interest on their pension and benefit funds. The court stated, however, that Parliament had chosen for undisclosed reasons to lawfully deny the veterans, to whom the Crown owed a fiduciary duty, those benefits whether legal, equitable or fiduciary. The due process protections of property in the Bill of Rights did not grant procedural rights in the process of legislative enactment. They did confer certain rights to notice and an opportunity to make submissions in the adjudication of individual rights and obligations, but, the court held that no such rights were at issue in this appeal. The court stated that while the due process guarantees may have some substantive content not apparent in this appeal, there was no due process right against duly enacted legislation unambiguously expropriating property interests. The court concluded therefore that s. 5.1(4) was not inconsistent with s. 1(a) or s. 2(e) of the Bill of Rights.

Armed Forces - Topic 8005

Pensions - General principles - Interest on pension funds administered by Crown - Authorson was a disabled war veteran whose pension was administered for him by the federal Department of Veterans Affairs (DVA) because he was incapable of doing so himself - Authorson, as representative plaintiff in a class action, claimed interest on the funds invested over the years by the DVA - The Crown argued that s. 5.1(4) of the Department of Veterans Affairs Act barred claims prior to 1990 - Section 5.1(4) provided that "no claim shall be made after this subsection comes into force for or on account of interest on moneys held or administered by the Minister during any period prior to January 1, 1990 ..." - The Supreme Court of Canada agreed that s. 5.1(4) barred any claims for interest prior to 1990 - Section 5.1(4) was not inconsistent with the Canadian Bill of Rights, namely s. 1(a) (the right not to be deprived of the enjoyment of property without due process of law) and s. 2(e) (the right to a fair hearing) - See paragraphs 31 to 65.

Armed Forces - Topic 8005

Pensions - General principles - Interest on pension funds administered by Crown - Authorson was a disabled war veteran whose pension was administered for him by the federal Department of Veterans Affairs (DVA) because he was incapable of doing so himself - Authorson, as representative plaintiff in a class action, claimed interest on the funds invested over the years by the DVA - The Crown argued that s. 5.1(4) of the Veterans Affairs Act barred claims prior to 1990 - The Supreme Court of Canada held that the interest claim was barred - The court stated that "the respondent and the class of disabled veterans it represents are owed decades of interest on their pension and benefit funds. The Crown does not dispute these findings. But Parliament has chosen for undisclosed reasons to lawfully deny the veterans, to whom the Crown owed a fiduciary duty, these benefits whether legal, equitable or fiduciary. The due process protections of property in the Bill of Rights do not grant procedural rights in the process of legislative enactment. They do confer certain rights to notice and an opportunity to make submissions in the adjudication of individual rights and obligations, but no such rights are at issue in this appeal. While the due process guarantees may have some substantive content not apparent in this appeal, there is no due process right against duly enacted legislation unambiguously expropriating property interests" - See paragraphs 62 and 63.

Civil Rights - Topic 8005

Canadian Bill of Rights - Principles of operation and interpretation - Due process, right to life, liberty, security and enjoyment of property - [See both Armed Forces - Topic 8005 ].

Civil Rights - Topic 8005

Canadian Bill of Rights - Principles of operation and interpretation - Due process, right to life, liberty, security and enjoyment of property - Section 1(a) of the Canadian Bill of Rights, enacted in 1960, recognized the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law - The Supreme Court of Canada stated that s. 1(a) did not give Canadians the right to notice and a hearing to contest proposed legislation - The court stated that "... in 1960, and today, no such right exists. Long-standing parliamentary tradition makes it clear that the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. Once that process is completed, legislation within Parliament's competence is unassailable" - See paragraph 37.

Civil Rights - Topic 8005

Canadian Bill of Rights - Principles of operation and interpretation - Due process, right to life, liberty, security and enjoyment of property - Section 1(a) of the Canadian Bill of Rights, enacted in 1960, recognized the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law - The Supreme Court of Canada, in discussing what procedural protections for property rights were guaranteed by due process stated that "... the Bill of Rights guarantees notice and some opportunity to contest a governmental deprivation of property rights only in the context of an adjudication of that person's rights and obligations before a court or tribunal ... Section 1(a) of the Bill of Rights does guarantee a degree of procedural due process in the application of the law in an individualized, adjudicative setting" - See paragraphs 42 and 47.

Civil Rights - Topic 8005

Canadian Bill of Rights - Principles of operation and interpretation - Due process, right to life, liberty, security and enjoyment of property - Section 1(a) of the Canadian Bill of Rights, enacted in 1960, recognized the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law - The Supreme Court of Canada, stated that "... s. 1(a) may be seen as conferring procedural protections against the deprivation of property that existed in 1960. Certain procedural rights in this regard have long been recognized. In Lapointe v. Association de Bienfaisance et de Retraite de la Police de Montréal, [1906] A.C. 535, the Privy Council recognized a right to have notice of accusations made and an opportunity to make a defence where the board of directors of a pension board stripped a police officer, who had resigned, of his pension. Where the law requires the application of discretion or judgment to specific factual situations, notice and an opportunity to contest may be required. For example, such rights may exist where the government eliminates a veteran's benefits because it believes he is no longer disabled, or because it believes he was never a member of the armed forces. However, notice and an opportunity to make a defence are not required where the government legislates to completely eliminate such benefits" - See paragraph 44.

Civil Rights - Topic 8005

Canadian Bill of Rights - Principles of operation and interpretation - Due process, right to life, liberty, security and enjoyment of property - Authorson was a disabled war veteran whose pension was administered for him by the federal Department of Veterans Affairs (DVA) because he was incapable of doing so himself - Authorson, as representative plaintiff in a class action, claimed interest on funds invested by the DVA - The Crown argued that s. 5.1(4) of the Department of Veterans Affairs Act barred claims for interest prior to 1990 - Authorson argued that s. 5.1(4) amounted to an expropriation of his property and s. 1(a) of the Canadian Bill of Rights gave rise to a substantive due process right against the expropriation of property without just compensation - The Supreme Court of Canada stated that the Bill of Rights did not protect against the expropriation of property by the passage of unambiguous legislation - Section 5.1(4) was clear and unambiguous - Authorson had no claim for interest - Since he would have had no substantive right against a clear and unambiguous expropriation in 1960, the Bill of Rights could offer him no such protection today - See paragraphs 47 to 57.

Civil Rights - Topic 8006

Canadian Bill of Rights - Principles of operation and interpretation - Right to a fair hearing in accordance with principles of fundamental justice - [See both Armed Forces - Topic 8005 ].

Civil Rights - Topic 8006

Canadian Bill of Rights - Principles of operation and interpretation - Right to a fair hearing in accordance with principles of fundamental justice - Section s. 2(e) of the Canadian Bill of Rights guaranteed that no law of Canada shall be construed or applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations - The Supreme Court of Canada stated that s. 2(e) applied only to guarantee the fundamental justice of proceedings before any tribunal or administrative body that determined individual rights and obligations - Section 2(e) did not impose upon Parliament the duty to provide a hearing before the enactment of legislation - The protection of s. 2(e) was operative only in the application of law to individual circumstances in a proceeding before a court, tribunal or similar body - See paragraphs 58 to 61.

Civil Rights - Topic 8006

Canadian Bill of Rights - Principles of operation and interpretation - Right to a fair hearing in accordance with principles of fundamental justice - Authorson was a disabled war veteran whose pension was administered for him by the federal Department of Veterans Affairs (DVA) because he was incapable of doing so himself - Authorson, as representative plaintiff in a class action, claimed interest on funds invested by the DVA - The Crown argued that s. 5.1(4) of the Veterans Affairs Act barred claims for interest prior to 1990 - Authorson argued that pursuant to s. 2(e) of the Canadian Bill of Rights he was guaranteed a hearing prior to Parliament passing legislation expropriating the interest on his pension monies - The Supreme Court of Canada rejected this argument, stating that s. 2(e) applied only to guarantee the fundamental justice of proceedings before any tribunal or administrative body that determined individual rights and obligations - See paragraphs 58 to 61.

Government Programs - Topic 2526

Veterans' pensions - Administration - Duty re investment of funds - [See both Armed Forces - Topic 8005 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - The Supreme Court of Canada looked to the French version of s. 2(e) of the Canadian Bill of Rights as an aid to interpreting the English version of s. 2(e) - See paragraph 60.

Cases Noticed:

R. v. Drybones, [1970] S.C.R. 282, refd to. [para. 32].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386, refd to. [para. 33].

R. v. Burnshine, [1975] 1 S.C.R. 693; 2 N.R. 53, refd to. [para. 33].

Constitutional Amendment References 1981 (Man., Nfld., Qué.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1, refd to. [para. 38].

Reference Re Resolution to Amend the Constitution - see Constitutional Amendment References 1981 (Man., Nfld., Qué.).

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 39].

Lapointe v. Association de Bienfaisance et de Retraite de la Police de Montréal, [1906] A.C. 535 (P.C.), refd to. [para. 44].

Lochner v. New York (1905), 198 U.S. 45, refd to. [para. 48].

Curr v. R., [1972] S.C.R. 889, refd to. [para. 49].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 50].

Florence Mining Co. v. Cobalt Lake Mining Co. (1909), 18 O.L.R. 275 (C.A.), refd to. [para. 53].

Manitoba Fisheries Ltd. v. Canada, [1979] 1 S.C.R. 101; 23 N.R. 159, refd to. [para. 54].

Attorney-General v. De Keyser's Royal Hotel, [1920] A.C. 508 (H.L.), refd to. [para. 54].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1985, App. III, sect. 1(a), sect. 2(e) [para. 30].

Department of Veterans Affairs Act, R.S.C. 1985, c. V-1, sect. 5.1(4) [para. 30].

Department of Veterans Affairs Act, An Act to Amend the, S.C. 1990, c. 43, sect. 64(2) [para. 30].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (4th Ed. 1997), p. 1070 [para. 48].

Counsel:

Graham R. Garton, Q.C., John C. Spencer and Yvonne Milosevic, for the appellant;

Raymond G. Colautti, David G. Greenaway and Peter Sengbusch, for the respondent.

Solicitors of Record:

Attorney General of Canada, Ottawa, Ontario, for the appellant;

Raphael Partners, Windsor, Ontario, for the respondent.

This appeal was heard on April 10, 2003, before McLachlin, C.J.C., Gonthier, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

The decision of the Supreme Court of Canada was delivered in both official languages on July 17, 2003, by Major, J.