Hislop et al. v. Canada (Attorney General), 2009 ONCA 354

• Jurisdiction: Ontario
• Judge: Lang, Rouleau and Watt, JJ.A.
• Date: 30 September 2008
• Citation: 2009 ONCA 354,(2009), 248 O.A.C. 205 (CA)
• Court: Court of Appeal (Ontario)

Hislop v. Can. (A.G.) (2009), 248 O.A.C. 205 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. MY.012

George Hislop, Brent E. Daum, Albert McNutt, Eric Brogaard and Gail Meredith (plaintiffs/appellants) v. The Attorney General of Canada (defendant/respondent)

Proceeding under the Class Proceedings Act, 1992

(C48570; 2009 ONCA 354)

Indexed As: Hislop et al. v. Canada (Attorney General)

Ontario Court of Appeal

Lang, Rouleau and Watt, JJ.A.

April 30, 2009.

Summary:

Hislop and several others (the Hislop class) undertook class action proceedings in which they claimed that certain amendments made by the Modernization of Benefits and Obligations (MBOA) to the Canada Pension Plan (CPP) offended s. 15(1) of the Charter where the class members had been denied CPP survivors pensions because they and their deceased partners were of the same sex. The Hislop class was successful and obtained declaratory relief, damages and a monetary judgment. Lawyers who conducted class proceedings under Ontario law were compensated in accordance with a fee agreement if approved by a judge of the Superior Court of Justice. Amounts owing to the lawyers under the approved fee agreement were a first charge on any settlement funds or monetary award made in the litigation (Class Proceedings Act (CPA), s. 32(3)). CPP benefits could not be assigned or charged and any transaction that purported to assign or charge those benefits was void (CPP, s. 65(1)).

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned 473, refused to grant a first charge to the lawyers who represented the Hislop class in the class proceedings litigation. The court held that a declaration that some class members were entitled to an award of retroactive and future CPP benefits was both a "monetary award" under the CPA and a "benefit" under the CPP. The court also decided that the prohibition against assignment or charge of CPP benefits prevailed over the first charge the lawyers would usually have over a monetary award under the CPA. The lawyers appealed.

The Ontario Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 4788

Solicitor's lien - Charging orders - Canada Pension Plan benefits - Hislop and several others (the Hislop class) undertook class action proceedings in which they claimed that certain amendments made by the Modernization of Benefits and Obligations (MBOA) to the Canada Pension Plan (CPP) offended the Charter - The Hislop class was successful and obtained declaratory relief, damages and a monetary judgment - Lawyers who conducted class proceedings under Ontario law were compensated in accordance with a fee agreement - Amounts owing to the lawyers under the approved fee agreement were a first charge on any settlement funds or monetary award made in the litigation (Class Proceedings Act (CPA), s. 32(3)) - CPP benefits could not be assigned or charged and any transaction that purported to assign or charge those benefits was void (CPP, s. 65(1)) - The trial judge refused to grant a first charge to the lawyers who represented the Hislop class - The trial judge held that a declaration that class members were entitled to an award of retroactive and future CPP benefits was both a "monetary award" under the CPA and a "benefit" under the CPP - The court also decided that the prohibition against assignment or charge of CPP benefits prevailed over the first charge the lawyers would usually have over a monetary award under the CPA - The lawyers appealed, asserting that s. 94A of the Constitution Act, 1867, assigned to the CPA a paramount place in the event of conflict between the two statutory schemes - The Ontario Court of Appeal dismissed the appeal - Section 94A assigned predominance to provincial laws contrary to the usual preferential place accorded federal laws - To engage s. 94A, there had to be both federal and provincial "laws in relation to old age pensions and supplementary benefits", or laws in relation to either one of those subjects - The CPP qualified as a law "in relation to old age pensions and supplementary benefits" - The CPA was a statute of general application, a law that dealt with procedure in civil matters - The CPA was not and did not purport to be a law "in relation to old age pensions and supplementary benefits" - Accordingly, the conditions precedent to the rule establishing provincial paramountcy were not established - See paragraphs 48 to 63.

Constitutional Law - Topic 6222

Federal jurisdiction (s. 91) - Pensions - Canada Pension Plan - [See Barristers and Solicitors - Topic 4788 ].

Government Programs - Topic 1235

Canada Pension Plan - Entitlement - Retroactive benefits - Hislop and several others (the Hislop class) undertook class action proceedings in which they claimed that certain amendments made by the Modernization of Benefits and Obligations (MBOA) to the Canada Pension Plan (CPP) offended s. 15(1) of the Charter where the class members had been denied CPP survivors pensions because they and their deceased partners were of the same sex - The Hislop class was successful and obtained declaratory relief, damages and a monetary judgment - The trial judge held that a declaration that some class members were entitled to an award of retroactive and future CPP benefits was a "benefit" under the CPP - The Ontario Court of Appeal agreed - To constitute a benefit under ss. 2(1) and 65(1) of the CPP, the benefit had to have its origins in the CPP - The obligation to pay and the entitlement to receive the benefit had to originate in the CPP and not reside elsewhere - The litigation and the remedy obtained had to do with CPP benefits - The invocation of the Charter to establish entitlement did not eliminate the CPP as the source of the benefits obtained - The award to the Hislop class was an award of benefits under the CPP - See paragraphs 20 to 34.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - [See Barristers and Solicitors - Topic 4788 ].

Cases Noticed:

Hislop et al. v. Canada (Attorney General), [2003] O.T.C. 1111; 234 D.L.R.(4th) 465 (S.C.), revd. in part (2004), 192 O.A.C. 331; 73 O.R.(3d) 641 (C.A.), affd. [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324, refd to. [paras. 6, 7].

Trick v. Trick (2006), 213 O.A.C. 105 (C.A.), refd to. [para. 33].

Hooper v. Hooper (2002), 159 O.A.C. 224; 59 O.R.(3d) 787 (C.A.), refd to. [para. 33].

Canada (Minister of Human Resources Development) v. Tait et al. (2006), 356 N.R. 382 (F.C.A.), refd to. [para. 33].

Mintzer v. Minister of National Revenue, [1996] 2 F.C. 146; 192 N.R. 39 (F.C.A.), refd to. [para. 33].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 41].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 42].

Ontario New Home Warranty Program et al. v. Chevron Chemical Co. et al. (1999), 99 O.T.C. 384; 46 O.R.(3d) 130; 37 C.P.C.(4th) 175 (Sup. Ct.), refd to. [para. 42].

Bisaillon v. Concordia University, [2006] 1 S.C.R. 666; 348 N.R. 201; 2006 SCC 19, refd to. [para. 57].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201, refd to. [para. 57].

Statutes Noticed:

Canada Pension Plan, R.S.C. 1985, c. C-8, sect. 2(1) [para. 14]; sect. 65(1) [para. 15].

Class Proceedings Act, S.O. 1992, c. 6, sect. 32(3) [para. 17].

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, sect. 94A [para. 19].

Counsel:

Peter L. Roy, R. Douglas Elliott and Sean M. Grayson, for the appellants;

Cynthia Koller and Barney Brucker, for the Crown.

This appeal was heard on September 30, 2008, by Lang, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Watt, J.A., on April 30, 2009.