Bennett v. British Columbia, (2012) 318 B.C.A.C. 153 (CA)

• Judge: K. Smith, Chiasson and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 14, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 318 B.C.A.C. 153 (CA);2012 BCCA 115

Bennett v. B.C. (2012), 318 B.C.A.C. 153 (CA);

    541 W.A.C. 153

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. MR.038

Frederick Bennett (appellant/plaintiff) v. Her Majesty the Queen in Right of the Province of British Columbia (respondent/defendant)

(CA037602; 2012 BCCA 115)

Indexed As: Bennett v. British Columbia

British Columbia Court of Appeal

K. Smith, Chiasson and Groberman, JJ.A.

March 14, 2012.

Summary:

Until January 1, 2003, 27,000 members of the British Columbia Public Service Pension Plan, who were retired as of November 30, 2002, and who had elected on their retirement to receive Medical Services Plan (MSP) and Extended Health Benefits (EHB) insurance during their retirement, received that insurance premium-free. Legislative amendments effective January 1, 2003, required those retirees to pay a portion of their MSP premiums and altered EHB coverage. The plaintiff's class action alleged a vested statutory and contractual right to receive that insurance premium-free.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 1358, dismissed the action. The plaintiff appealed.

The British Columbia Court of Appeal dismissed the appeal.

Contracts - Topic 8

General principles - General - Unilateral v. bilateral contracts (incl. what constitutes a unilateral contract) - [See first Crown - Topic 1001 ].

Contracts - Topic 1103

Formation of contract - General principles - Promises or assurances - [See both Crown - Topic 1001 ].

Contracts - Topic 2861

Consideration - What constitutes consideration - General - [See first Crown - Topic 1001 ].

Contracts - Topic 7406

Interpretation - General principles - Interpretation by context - [See second Crown - Topic 1001 ].

Contracts - Topic 7521

Interpretation - Surrounding circumstances - General - [See second Crown - Topic 1001 ].

Crown - Topic 1001

Contracts with Crown - General principles - General (incl. what constitutes) - Until January 1, 2003, 27,000 members of the British Columbia Public Service Pension Plan, who were retired as of November 30, 2002, and who had elected on their retirement to receive Medical Services Plan (MSP) and Extended Health Benefits (EHB) insurance during their retirement, received that insurance premium-free - Legislative amendments effective January 1, 2003, required those retirees to pay a portion of their MSP premiums and altered EHB coverage - The plaintiff's class action alleged a contractual right to receive that insurance premium-free - The trial judge dismissed the action - On appeal, the plaintiff asserted, inter alia, that the trial judge had erred in failing to find that there was a contract between the subclass and the respondent government for premium-free insurance and in dismissing the claim in breach of contract - The British Columbia Court of Appeal dismissed the appeal - The trial judge had concluded that the statements relied on by the plaintiff as evidence of promises were merely descriptions of the benefits available and that the subclass members had given no consideration for them in any event - The court rejected the plaintiff's assertion that the trial judge had erred in failing to recognize that the members' continuing to work for the government until retirement was consideration - The trial judge found that the communications were made to retired or about-to-be retired employees - This was central to her conclusion that they were not promises and that, therefore, no consideration was given for them - No palpable and overriding error in that reasoning had been demonstrated - There was no such "unilateral contract" as asserted by the plaintiff - See paragraphs 19 to 37.

Crown - Topic 1001

Contracts with Crown - General principles - General (incl. what constitutes) - Until January 1, 2003, 27,000 members of the British Columbia Public Service Pension Plan, who were retired as of November 30, 2002, and who had elected on their retirement to receive Medical Services Plan (MSP) and Extended Health Benefits (EHB) insurance during their retirement, received that insurance premium-free - Legislative amendments effective January 1, 2003, required those retirees to pay a portion of their MSP premiums and altered EHB coverage - The plaintiff's class action alleged a contractual right to receive that insurance premium-free - The trial judge dismissed the action - On appeal, the plaintiff asserted, inter alia, that the trial judge had erred in concluding that the communications that he relied on as evidence of a contract were mere descriptions of the retirement benefits as they existed from time to time rather than promises of future benefits - The British Columbia Court of Appeal dismissed the appeal - From a grammatical viewpoint, as the statements at issue were expressed in the future tense, they could be construed as commitments to future actions - However, a determination of the grammatical sense of the words did not exhaust the interpretive exercise - The trial judge's findings as to the circumstances surrounding the use of the words and the meaning to be attributed to them were questions of facts on which an appellate court could not interfere in the absence of palpable and overriding error - The evidence here was sufficient to support the trial judge's conclusion - See paragraphs 38 to 44.

Government Programs - Topic 3861

Pensions for government employees or R.C.M.P. - Benefits and other sums payable - General - [See both Crown - Topic 1001 and both Statutes - Topic 2263 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Until January 1, 2003, 27,000 members of the British Columbia Public Service Pension Plan, who were retired as of November 30, 2002, and who had elected on their retirement to receive Medical Services Plan (MSP) and Extended Health Benefits (EHB) insurance during their retirement, received that insurance premium-free - Legislative amendments effective January 1, 2003, required those retirees to pay a portion of their MSP premiums and altered EHB coverage - The plaintiff's class action alleged a vested statutory right to receive that insurance premium-free - The trial judge dismissed the action - On appeal, the plaintiff asserted, inter alia, that the trial judge had erred in failing to find that the class members had a vested statutory right to premium-free MSP and EHB - The respondent government asserted that the issue was not properly before the court as it was not certified as a common issue - The British Columbia Court of Appeal ordered that the certification order was to be amended to include this issue and agreed to determine it on the merits - The issue was common to all members of the class and could have been certified - Further evidence was not required - The question of whether rights to these benefits became vested under the legislative provisions was argued at trial and was decided by the trial judge as an aspect of the submission that the subclass had a contractual right to the benefits - The plaintiff's submission at this court was a refinement and reformulation of the submission made at trial - No prejudice would accrue to the government from the court's agreeing to adjudicate the issue - See paragraphs 45 to 47.

Practice - Topic 8808

Appeals - General principles - Duty of appellate court respecting conclusions or interpretation of trial judge (incl. contractual interpretation) - [See second Crown - Topic 1001 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Practice - Topic 209.3 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See second Statutes - Topic 2263 ].

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - [See second Statutes - Topic 2263 ].

Statutes - Topic 2263

Interpretation - Presumptions and rules in aid - Against interference with vested rights (incl. pending litigation) - Until January 1, 2003, 27,000 members of the British Columbia Public Service Pension Plan, who were retired as of November 30, 2002, and who had elected on their retirement to receive Medical Services Plan (MSP) and Extended Health Benefits (EHB) insurance during their retirement, received that insurance premium-free - Legislative amendments effective January 1, 2003, required those retirees to pay a portion of their MSP premiums and altered EHB coverage - The plaintiff's class action alleged a vested statutory right to receive that insurance premium-free - The trial judge dismissed the action - On appeal, the plaintiff asserted, inter alia, that the trial judge had erred in failing to find that the class members had a vested statutory right to premium-free MSP and EHB - The British Columbia Court of Appeal dismissed the appeal - Having examined the entire context of the legislation and regulations, the trial judge concluded that the retiree benefits were never intended to be "guaranteed" or premium-free in perpetuity - The court rejected the plaintiff's argument that the judge had erred in focussing on whether the benefits were "guaranteed ... premium-free in perpetuity" because, in doing so, she had conflated the existence of discretion to prescribe premiums from time to time with the exercise of the discretion - Rather, she was considering whether, for the class, the right to premium-free insurance was "tangible" and "concrete" and "sufficiently constituted" - If it was, class members were "guaranteed" premium-free insurance in the sense that the right was vested to them and could not be taken away except by clear and unequivocal language - Thus, the judge used "guaranteed" to denote that there was no vested right to premium-free insurance where a vested right was not contingent, but was guaranteed - See paragraphs 48 to 65.

Statutes - Topic 2263

Interpretation - Presumptions and rules in aid - Against interference with vested rights (incl. pending litigation) - Until January 1, 2003, 27,000 members of the British Columbia Public Service Pension Plan, who were retired as of November 30, 2002, and who had elected on their retirement to receive Medical Services Plan (MSP) and Extended Health Benefits (EHB) insurance during their retirement, received that insurance premium-free - Legislative amendments effective January 1, 2003, required those retirees to pay a portion of their MSP premiums and altered EHB coverage - The plaintiff's class action alleged a vested statutory right to receive that insurance premium-free - The trial judge dismissed the action - On appeal, the plaintiff asserted, inter alia, that the trial judge had erred in failing to find that the class members had a vested statutory right to premium-free MSP and EHB - The British Columbia Court of Appeal dismissed the appeal - The court agreed with the plaintiff that the trial judge, in stating that the purpose of the legislative scheme was "to infuse the Lieutenant-Governor with legal capacity to develop insurance programs for current and former civil servants", had stated that purpose too narrowly, but this had not affected her statutory analysis in any substantive way - The modern approach to statutory interpretation required a purposive interpretation - The judge correctly focussed on whether the discretion to set premium contributions was an important sign of legislative intent to be considered in the proper construction of the legislative scheme - She observed that to accede to the plaintiff's submission would be to create a new class of retirees each time the rates of contribution changed - This was not a reasonable intention to attribute to the legislation in the absence of some clear indication that it was intended that discrete groups of retirees would be treated differently depending on the timing of their election - Therefore, if the class members had any vested right at all, the right was to a contributory plan of MSP and EHB insurance with premium contributions of members and corresponding subsidies by the government in amounts prescribed from time to time - See paragraphs 66 to 71.

Cases Noticed:

Bennett v. British Columbia, [2005] B.C.T.C. 1673; 2005 BCSC 1673, revd. in part (2007), 234 B.C.A.C. 180; 387 W.A.C. 180; 277 D.L.R.(4th) 440; 2007 BCCA 5, refd to. [para. 8].

Canada (Attorney General) v. Confederation Life Insurance Co. (1995), 24 O.R.(3d) 717; 33 C.B.R.(3d) 161 (Gen. Div.), affd. (1997), 145 D.L.R.(4th) 747; 32 O.R.(3d) 103 (C.A.), refd to. [para. 24].

Carlill v. Carbolic Smoke Ball Co., [1892] EWCA Civ. 1; [1893] 1 Q.B. 256 (C.A.), refd to. [para. 27].

Sloan v. Union Oil Co. of Canada Ltd., [1955] 4 D.L.R. 664 (B.C.S.C.), refd to. [para. 27].

Mosier v. Linden-Alimak Inc. (1985), 65 B.C.L.R. 111 (S.C.), refd to. [para. 27].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [paras. 34].

Schmidt v. Air Products Canada Ltd. - see Stearns Catalytic Pension Plans, Re.

Stearns Catalytic Pension Plans, Re, [1994] 2 S.C.R. 611; 168 N.R. 81; 155 A.R. 81; 73 W.A.C. 81, refd to. [para. 40].

Keefer Laundry Ltd. v. Pellerin Milnor Corp. et al. (2009), 271 B.C.A.C. 307; 458 W.A.C. 307; 94 B.C.L.R.(4th) 205; 2009 BCCA 273, refd to. [para. 41].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 47].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 49].

R. v. J.A., [2011] 2 S.C.R. 440; 417 N.R. 1; 2011 SCC 28, refd to. [para. 50].

Dikranian v. Quebec (Attorney General), [2005] 3 S.C.R. 530; 342 N.R. 1; 2005 SCC 73, refd to. [para. 59].

British Columbia Nurses' Union et al. v. Municipal Pension Board of Trustees et al., [2006] B.C.T.C. 132; 2006 BCSC 132, refd to. [para. 60].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 61].

Statutes Noticed:

Public Service Benefit Plan Amendment Act, S.B.C. 1980, c. 47, sect. 2(1), sect. 3, sect. 12(1), sect. 17(1), sect. 17(2)(c) [para. 12].

Public Service Benefit Plan Act Regulations (B.C.), Reg. 141/95, sect. 1, sect. 2(1) [para. 14].

Public Service Benefit Plan Act Regulations (B.C.), Reg. 276/2002, sect. 3(a) [para. 17].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Contracts in Canada (5th Ed. 2006), pp. 3, 4 [para. 38]; 71 [para. 27].

Counsel:

T.R. Berger, Q.C., G.A. Nelson and A.C. Peeling, for the appellant;

J.G. Morley and T.E. Callan, for the respondent.

This appeal was heard at Vancouver, B.C., on June 1-3, 2011, by K. Smith, Chiasson and Groberman, JJ.A., of the British Columbia Court of Appeal. On March 14, 2012, K. Smith, J.A., delivered the following judgment for the court.