Melanson v. New Brunswick et al., (2007) 310 N.B.R.(2d) 356 (CA)

• Judge: Turnbull, Daigle and Robertson, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 15, 2007
• Jurisdiction: New Brunswick
• Citations: (2007), 310 N.B.R.(2d) 356 (CA);2007 NBCA 12

Melanson v. N.B. (2007), 310 N.B.R.(2d) 356 (CA);

    310 R.N.-B.(2e) 356; 800 A.P.R. 356

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

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

Temp. Cite: [2007] N.B.R.(2d) TBEd. MR.008

Renvoi temp.: [2007] N.B.R.(2d) TBEd. MR.008

Craig Melanson et al. (plaintiffs/appellants) v. The Province of New Brunswick, as represented by the Honourable Bradley Green, Attorney General and Minister of Health et al. (defendants/respondents) and Randy Audfroid et al. (respondents/respondents)

(149/06/CA; 2007 NBCA 12)

Indexed As: Melanson v. New Brunswick et al.

Répertorié: Melanson c. New Brunswick et al.

New Brunswick Court of Appeal

Turnbull, Daigle and Robertson, JJ.A.

February 26, 2007.

Summary:

Résumé:

On September 15, 2004, a pulp company declared bankruptcy. Its two pension plans were significantly underfunded. The Pension Benefits Act, through s. 50 of Regulation 91-195, provided a distribution formula for underfunded pension funds. On December 28, 2005, the Province amended the distribution formula by enacting Regulation 2005-157. The plaintiffs were former employees who had retired or were entitled to retire before the company's bankruptcy (the "over 55's"). The defendant was the Province. The added parties were former employees who were still working at the time of the bankruptcy (the "under 55's"). The new regulation reduced the pension entitlement of the over 55's to permit the under 55's to receive benefits. Under the old provision, the under 55's would have received no benefits. The over 55's claimed that the Province could not enact a provision which had retroactive effect and that the new regulation offended their ss. 7, 8 and 15 Charter rights.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 311 N.B.R.(2d) 271; 803 A.P.R. 271, held that the Province validly enacted retroactive legislation and the plaintiffs' Charter rights were not infringed. The plaintiffs appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms -Denial of liberty - What constitutes - A pulp company declared bankruptcy - Its two pension plans were significantly underfunded - The Pension Benefits Act, by regulation, provided a distribution formula for underfunded pension funds - The Province amended the distribution formula by enacting a new regulation - The plaintiffs were former employees who had retired or were entitled to retire before the company's bankruptcy (the "over 55's") - The defendant was the Province - The added parties were former employees who were still working at the time of the bankruptcy (the "under 55's") - The new regulation reduced the pension entitlement of the over 55's to permit the under 55's to receive benefits - Under the old provision, the under 55's would have received no benefits - The over 55's claimed that the amendment impaired their s. 7 Charter rights (life, liberty and security of the person) - The New Brunswick Court of Appeal affirmed that s. 7 was not violated - The court stated even if it accepted that s. 7 should be extended to economic interests and the impugned regulation was a deprivation of the plaintiffs' security interest, it would still be left with the difficult task of isolating the principle of fundamental justice that was brought into play - Any deprivation was not arbitrary - See paragraphs 1 to 9 and 18 to 22.

Civil Rights - Topic 783

Liberty - Particular rights - Economic or property rights (incl. choice of work) - [See Civil Rights - Topic 726 ].

Civil Rights - Topic 908

Discrimination - General principles - Nondiscriminatory laws - A pulp company declared bankruptcy - Its two pension plans were significantly underfunded - The Pension Benefits Act, by regulation, provided a distribution formula for underfunded pension funds - The Province amended the distribution formula by enacting a new regulation - The plaintiffs were former employees who had retired or were entitled to retire before the company's bankruptcy (the "over 55's") - The defendant was the Province - The added parties were former employees who were still working at the time of the bankruptcy (the "under 55's") - The new regulation reduced the pension entitlement of the over 55's to permit the under 55's to receive benefits - Under the old provision, the under 55's would have received no benefits - The over 55's claimed that the amendment discriminated against them on the basis of age contrary to s. 15 of the Charter - The New Brunswick Court of Appeal disagreed - The legislation did not result in differential treatment between the two groups - In fact, its purpose and effect was to eliminate the distinction that arose under the old legislation - Further, the over 55's were not a disadvantaged group - See paragraphs 1 to 17.

Civil Rights - Topic 999.5

Discrimination - Employment - Pension benefits - [See Civil Rights - Topic 908 ].

Civil Rights - Topic 1210

Security of the person - General - Denial of security - What constitutes - [See Civil Rights - Topic 726 ].

Civil Rights - Topic 1506

Property - General principles - Charter - Application of - [See Civil Rights - Topic 726 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - A pulp company declared bankruptcy - Its two pension plans were significantly underfunded - The Pension Benefits Act, by regulation, provided a distribution formula for underfunded pension funds - The Province amended the distribution formula by enacting a new regulation - The plaintiffs were former employees who had retired or were entitled to retire before the company's bankruptcy (the "over 55's") - The defendant was the Province - The added parties were former employees who were still working at the time of the bankruptcy (the "under 55's") - The new regulation reduced the pension entitlement of the over 55's to permit the under 55's to receive benefits - Under the old provision, the under 55's would have received no benefits - The over 55's claimed that the amendment violated their ss. 7 (life, liberty and security of the person) and 15 (equality) Charter rights - The New Brunswick Court of Appeal held that, had it found a Charter violation, it would have found that the legislation was saved under s. 1 - See paragraphs 23 and 24.

Civil Rights - Topic 8666

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Meaning of "discrimination" - [See Civil Rights - Topic 908 ].

Expropriation - Topic 3

Right to compensation - General principles - Expropriation defined (incl. constructive expropriation) - A pulp company declared bankruptcy - Its two pension plans were significantly underfunded - The Pension Benefits Act, by regulation, provided a distribution formula for underfunded pension funds - The Province amended the distribution formula by enacting a new regulation - The plaintiffs were former employees who had retired or were entitled to retire before the company's bankruptcy (the "over 55's") - The defendant was the Province - The added parties were former employees who were still working at the time of the bankruptcy (the "under 55's") -The new regulation reduced the pension entitlement of the over 55's to permit the under 55's to receive benefits - Under the old provision, the under 55's would have received no benefits - The New Brunswick Court of Appeal held that the case was not about an expropriation without compensation - Employer contributions to a pension plan were for the benefit of all employees and not just those who had reached retirement age or who were presently receiving a pension - This was a case in which the government had to decide how to best divide a pie amongst 724 persons, each of whom had made a contribution in accordance with the recipe set out in their employment contract - See paragraph 25.

Master and Servant - Topic 1946

Remuneration - Pension or retirement benefits - Variation or amendment of plan - [See Civil Rights - Topic 726 , Civil Rights - Topic 908 , Expropriation - Topic 3 and Statutes - Topic 6711 ].

Statutes - Topic 6711

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Regulations - On September 15, 2004, a pulp company declared bankruptcy - Its two pension plans were significantly underfunded - The Pension Benefits Act, by regulation, provided a distribution formula for underfunded pension funds - On December 28, 2005, the Province amended the distribution formula by enacting a new regulation - The plaintiffs were former employees who had retired or were entitled to retire before the company's bankruptcy (the "over 55's") - The defendant was the Province - The added parties were former employees who were still working at the time of the bankruptcy (the "under 55's") -The new regulation reduced the pension entitlement of the over 55's to permit the under 55's to receive benefits - Under the old provision, the under 55's would have received no benefits - The over 55's claimed that the Province could not enact a provision which had retroactive effect - The trial judge disagreed - The Province clearly had the intention to give the provisions retroactive effect and it had the authority to do so - On appeal, the plaintiffs submitted that the impugned regulation was "retrospective" in nature and, therefore, the Lieutenant-Governor in Council lacked the authority to adopt the regulation - The New Brunswick Court of Appeal held that the argument was without merit - See paragraph 10.

Droits et libertés - Cote 726

Liberté - Charte des droits et libertés - En quoi consiste la négation de la liberté - [Voir Civil Rights - Topic 726 ].

Droits et libertés - Cote 783

Liberté - Droits particuliers - Droits économiques et de propriété (y compris choix du travail) - [Voir Civil Rights - Topic 783 ].

Droits et libertés - Cote 908

Discrimination - Principes généraux - Lois non discriminatoires - [Voir Civil Rights -Topic 908 ].

Droits et libertés - Cote 999.5

Discrimination - Emploi - Prestations de retraite - [Voir Civil Rights - Topic 999.5 ].

Droits et libertés - Cote 1210

Sécurité de sa personne - Généralités - Atteinte à la sécurité - Éléments constitutifs - [Voir Civil Rights - Topic 1210 ].

Droits et libertés - Cote 1506

Biens - Principes généraux - Application de la Charte - [Voir Civil Rights - Topic 1506 ].

Droits et libertés - Cote 8348

Charte canadienne des droits et libertés - Application - Exceptions - Limites raisonnables prescrites par une règle de droit (Charte, art. 1) - [Voir Civil Rights - Topic 8348 ].

Droits et libertés - Cote 8666

Charte canadienne des droits et libertés - Droits à l'égalité art. 15) - Signification de "discrimination" - [Voir Civil Rights - Topic 8666 ].

Employeurs et employés - Cote 1946

Rémunération - Prestations de pension - Modification du régime - [Voir Master and Servant - Topic 1946 ].

Expropriation - Cote 3

Droit à l'indemnité - Principes généraux - Définition de l'expropriation (y compris l'expropriation imputée) - [Voir Expropriation - Topic 3 ].

Législation - Cote 6711

Application et effet - Entrée en vigeur, durée et abrogation - Lois rétroactives ou rétrospectives - Application rétroactive ou rétrospective - Règlements - [Voir Statutes - Topic 6711 ].

Cases Noticed:

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, appld. [para. 4].

Vanguard Coatings and Chemicals Ltd. v. Minister of National Revenue, [1987] 1 F.C. 367; 7 F.T.R. 11 (T.D.), refd to. [para. 10].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 10].

Laronde v. Workplace Health, Safety and Compensation Commission (N.B.) et al. (2007), 312 N.B.R.(2d) 173; 806 A.P.R. 173; 2007 NBCA 10, refd to. [para. 11].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 11].

Bigsby v. Human Rights and Citizenship Commission (Alta.) et al. (2005), 363 A.R. 162; 343 W.A.C. 162; 2005 ABCA 52, refd to. [para. 17].

Bigsby v. Alberta (Pensions Administration) - see Bigsby v. Human Rights and Citizenship Commission (Alta.) et al.

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 18].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 18].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 18].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 19].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 19].

Patrick et al. v. Telus Communications Inc., [2006] B.C.T.C. Uned. D46; 2006 BCSC 1302, dist. [para. 27].

Statutes Noticed:

Pension Benefits Act Regulations (N.B.), St. Anne-Nackawic Pension Plans Regulation, Reg. 2005-157, generally [para. 8].

St. Anne-Nackawic Pension Plans Regulation - see Pension Benefits Act Regulations (N.B.).

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (2006 Looseleaf Update), p. 44-9 [para. 25].

Counsel:

Eugene J. Mockler, Q.C., and Adam B. Neal, for the appellants, Craig Melanson et al.;

John G. Furey, for the respondents, Province of New Brunswick et al.;

Anthony S. Richardson and Hugh Wright, for the respondents, Andy Audfroid et al.

This appeal was heard by Turnbull, Daigle and Robertson, JJ.A., of the New Brunswick Court of Appeal, on February 15, 2007. Robertson, J.A., delivered the following decision for the court on February 26, 2007.