Pension Coalition NB et al. v. New Brunswick, 2014 NBQB 248

Judge:Morrison, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:September 29, 2014
Jurisdiction:New Brunswick
Citations:2014 NBQB 248;(2014), 429 N.B.R.(2d) 58 (TD)
 
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Pension Coalition v. N.B. (2014), 429 N.B.R.(2d) 58 (TD);

    429 R.N.-B.(2e) 58; 1119 A.P.R. 58

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[French language version follows English language version]

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

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JA.004

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JA.004

Pension Coalition NB, Clifford Kennedy Jr, Viola Savage, Deborah McCormack and Rita Dunnett (applicants) v. Her Majesty the Queen in Right of the Province of New Brunswick, as represented by the Attorney General of New Brunswick and the Minister of Finance and the Board of Management, The Superintendent of Pension, and the Trustees of the Public Service Shared Risk Plan (respondents)

(F/M/38/14; 2014 NBQB 248; 2014 NBBR 248)

Indexed As: Pension Coalition NB et al. v. New Brunswick

Répertorié: Pension Coalition NB et al. v. New Brunswick

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Morrison, J.

November 17, 2014.

Summary:

Résumé:

In December 2013, the New Brunswick Legislature enacted An Act Respecting Public Service Pensions, pursuant to which the automatic annual cost of living adjustment (COLA), which applied to the base pension benefits prior to the implementation of the Act, was eliminated in favour of a discretionary adjustment dependent upon the performance of the plan. The applicants were part of a group of former provincial government employees who retired before implementation of the COLA changes. They filed a Notice of Application in which they challenged the validity of the Act on the basis that it infringed the Taxpayer Protection Act and s. 7 of the Charter. The applicants also sought certain payments from the consolidated fund, orders that certain provisions be read into the Act, orders requiring various employees and/or agents of the Crown to do certain acts, and various ancillary orders and procedural remedies. The respondent Crown entities moved for (1) an order requiring that the Notice of Application be struck on the ground that the relief requested was not appropriately sought on an application; and (2) an order declaring that the applicants had failed to provide notice of the proceeding to the Crown as required by s. 15(1) of the Proceedings Against the Crown Act, and that the Application was therefore a nullity and should be struck.

The New Brunswick Court of Queen's Bench, Trial Division, held that the relief claimed in the Application did not fall within that authorized by rule 16.04 of the Rules of Court. Given the breadth and scope of the relief claimed, and that there was likely to be a substantial dispute of fact, the matter had to proceed by way of action. This was the only procedure that would ensure that the necessary discovery and other pre-trial procedures would be available to all parties in order to enable a fair trial. The court ordered that the matter be converted into an action. The applicants were not required to give notice to the Crown pursuant to the Proceedings Against the Crown Act.

Associations - Topic 3402

Actions by associations - General - Standing - [See seventh Practice - Topic 73 ].

Civil Rights - Topic 8351

Canadian Charter of Rights and Freedoms - Application - Exceptions - Crown immunity or other bars to actions against Crown - [See sixth Practice - Topic 73 ].

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - [See fifth Practice - Topic 73 ].

Constitutional Law - Topic 9954

Practice - Notice to Crown and interested parties of constitutional question (incl. attack on validity or applicability of statute) - [See Crown - Topic 4432 ].

Crown - Topic 4427

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Actions to which Act applicable - [See Crown - Topic 4432 ].

Crown - Topic 4432

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Notice of action - In December 2013, the N.B. Legislature enacted An Act Respecting Public Service Pensions, pursuant to which the automatic annual cost of living adjustment (COLA), which applied to the base pension benefits prior to the implementation of the Act, was eliminated in favour of a discretionary adjustment dependent upon the performance of the plan - The applicants, a group of former provincial government employees who retired before implementation of the COLA changes, filed a Notice of Application in which they challenged the validity of the Act on the basis that it infringed the Taxpayer Protection Act and s. 7 of the Charter - The applicants also sought certain payments from the consolidated fund - The respondent Crown entities moved for an order declaring that the applicants had failed to provide notice of the proceeding to the Crown as required by s. 15(1) of the Proceedings Against the Crown Act, and that the Application was therefore a nullity and should be struck - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 15(1) did not apply because the interests of the Crown were only incidentally affected - Although the applicants were making a monetary claim by seeking an order that COLA benefits be paid to them, and monetary claims were generally regarded as directly affecting the interests of the Crown, the essential nature of this proceeding was that of declaratory relief respecting the validity of the legislation - The monetary claim would stand or fall on the decision respecting the declaratory relief - It was therefore incidental to the declaratory relief - See paragraphs 39 to 48.

Crown - Topic 4542.1

Actions by and against Crown in right of a province - Capacity of Crown to be sued - Statutory immunity - [See sixth Practice - Topic 73 ].

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - In December 2013, the N.B. Legislature enacted An Act Respecting Public Service Pensions, pursuant to which the automatic annual cost of living adjustment (COLA), which applied to the base pension benefits prior to the implementation of the Act, was eliminated in favour of a discretionary adjustment dependent upon the performance of the plan - The applicants, a group of former provincial government employees who retired before implementation of the COLA changes, filed a Notice of Application in which they challenged the validity of the Act on the basis that it infringed the Taxpayer Protection Act and s. 7 of the Charter - The respondent Crown entities moved for an order requiring that the Notice of Application be struck on the ground that the relief requested was not appropriately sought on an application - The applicants submitted that the claim fell within rule 16.04(a) of the Rules of Court because they had asked for the "direction of the Court on a question affecting the rights of any person in respect of the administration of a trust" - The New Brunswick Court of Queen's Bench, Trial Division, disagreed - Nowhere in the Application did the applicants seek the advice or direction of the court respecting the administration of the pension trust - In fact, the applicants did not seek any relief under the pension plan itself - Rather, they sought to have the current plan struck down - See paragraphs 9 and 10.

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - In December 2013, the N.B. Legislature enacted An Act Respecting Public Service Pensions, pursuant to which the automatic annual cost of living adjustment (COLA), which applied to the base pension benefits prior to the implementation of the Act, was eliminated in favour of a discretionary adjustment dependent upon the performance of the plan - The applicants, a group of former provincial government employees who retired before implementation of the COLA changes, filed a Notice of Application in which they challenged the validity of the Act on the basis that it infringed the Taxpayer Protection Act and s. 7 of the Charter - The respondent Crown entities moved for an order requiring that the Notice of Application be struck on the ground that the relief requested was not appropriately sought on an application - The applicants submitted that the claim fell within rule 16.04(e) of the Rules of Court because the relief claimed amounted to a "determination of rights which depend upon the interpretation of a statute" - The New Brunswick Court of Queen's Bench, Trial Division, disagreed - In pith and substance, the Application sought a declaration that provisions of the Act were invalid - The issue was not the interpretation of a statute but a declaration as to its validity - See paragraph 11.

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - In December 2013, the N.B. Legislature enacted An Act Respecting Public Service Pensions, pursuant to which the automatic annual cost of living adjustment (COLA), which applied to the base pension benefits prior to the implementation of the Act, was eliminated in favour of a discretionary adjustment dependent upon the performance of the plan - The applicants, a group of former provincial government employees who retired before implementation of the COLA changes, filed a Notice of Application in which they challenged the validity of the Act on the basis that it infringed the Taxpayer Protection Act and s. 7 of the Charter - The respondent Crown entities moved for an order requiring that the Notice of Application be struck on the ground that the relief requested was not appropriately sought on an application - The applicants submitted that the claim fell within rule 16.04(i) of the Rules of Court because the remedies they sought fell within the "declaration ... and other consequential and ancillary relief" authorized by the subrule - The New Brunswick Court of Queen's Bench, Trial Division, disagreed - Ancillary relief sought under rule 16.04(i) could not, in and of itself, justify proceeding by way of application - See paragraphs 12 and 13.

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - In December 2013, the N.B. Legislature enacted An Act Respecting Public Service Pensions, pursuant to which the automatic annual cost of living adjustment (COLA), which applied to the base pension benefits prior to the implementation of the Act, was eliminated in favour of a discretionary adjustment dependent upon the performance of the plan - The applicants, a group of former provincial government employees who retired before implementation of the COLA changes, filed a Notice of Application in which they challenged the validity of the Act on the basis that it infringed the Taxpayer Protection Act and s. 7 of the Charter - The respondent Crown entities moved for an order requiring that the Notice of Application be struck on the ground that the relief requested was not appropriately sought on an application - The applicants submitted that the claim fell within rule 16.04(j) of the Rules of Court, which authorized a Notice of Application for "any other matter" provided there was no substantial dispute of fact - The New Brunswick Court of Queen's Bench, Trial Division, found that there was a substantial dispute of fact which rose above a mere difference in the interpretation of uncontentious facts - Given the breadth of expert evidence which was anticipated, there was likely to be a substantial dispute - See paragraphs 14 to 22.

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - In December 2013, the N.B. Legislature enacted An Act Respecting Public Service Pensions, pursuant to which the automatic annual cost of living adjustment (COLA), which applied to the base pension benefits prior to the implementation of the Act, was eliminated in favour of a discretionary adjustment dependent upon the performance of the plan - The applicants, a group of former provincial government employees who retired before implementation of the COLA changes, filed a Notice of Application in which they challenged the validity of the Act on the basis that it infringed the Taxpayer Protection Act and s. 7 of the Charter - They also sought various ancillary orders and procedural remedies - The respondent Crown entities moved for an order requiring that the Notice of Application be struck on the ground that the relief requested was not appropriately sought on an application - The applicants submitted that a Notice of Application was uniquely appropriate for Charter cases, and pointed to jurisprudence from Ontario and N.S. in support of that proposition - The New Brunswick Court of Queen's Bench, Trial Division, disagreed - Unlike in Ontario, there was no rule in N.B. which specifically authorized the commencement of proceedings by application where the relief claimed was for a remedy under the Charter - Unlike in N.S., there was no rule in N.B. which gave parties to an application an automatic right to discovery - There was likely to be a genuine and substantial dispute of fact in this case - As well, this matter was less suited for disposition by application because of the broad scope of the relief claimed - See paragraphs 23 to 33.

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - In December 2013, the N.B. Legislature enacted An Act Respecting Public Service Pensions, pursuant to which the automatic annual cost of living adjustment (COLA), which applied to the base pension benefits prior to the implementation of the Act, was eliminated in favour of a discretionary adjustment dependent upon the performance of the plan - The applicants, a group of former provincial government employees who retired before implementation of the COLA changes, filed a Notice of Application in which they challenged the validity of the Act on the basis that it infringed the Taxpayer Protection Act and s. 7 of the Charter - The respondent Crown entities moved for an order requiring that the Notice of Application be struck on the ground that the relief requested was not appropriately sought on an application - The applicants submitted that a Notice of Application was required by virtue of s. 9(2) of the Act, which provided that "...no action for damages or other proceeding shall be instituted against the Crown..." - The New Brunswick Court of Queen's Bench, Trial Division, rejected this argument, stating "If the relief claimed by the Applicants is barred by subsection 9(2) it does not matter whether the substance of the claim is contained in a Notice of Application or a Notice of Action. ... In New Brunswick 'proceedings' are commenced by either Notice of Action or Notice of Application ... A Notice of Application is, therefore, an 'other proceeding' and would be caught by the same prohibition. ... Finally, subsection 9(2) does not and cannot insulate the Act from a Charter challenge." - See paragraphs 34 to 36.

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - The N.B. Legislature enacted An Act Respecting Public Service Pensions, pursuant to which the automatic annual cost of living adjustment (COLA), which applied to the base pension benefits prior to the implementation of the Act, was eliminated in favour of a discretionary adjustment dependent upon the performance of the plan - The applicants, which included the "NB Pension Coalition", filed a Notice of Application in which they challenged the validity of the Act on the basis that it infringed the Taxpayer Protection Act and s. 7 of the Charter - The respondent Crown entities moved for an order requiring that the Notice of Application be struck on the ground that the relief requested was not appropriately sought on an application - The applicants submitted that the Pension Coalition could not be a party to the proceeding if it was commenced by a Notice of Action because rule 9 of the Rules of Court applied only to applications - Rule 9.02 stated that "A proceeding may be brought by or against an association in the name of the association, whether or not it possesses a trust fund." - The New Brunswick Court of Queen's Bench, Trial Division, rejected this argument - A "proceeding" included a Notice of Application - There was nothing in rule 9 per se which restricted its operation to applications - See paragraphs 37 and 38.

Practice - Topic 204.3

Persons who can sue and be sued - Corporations - Associations and co-operatives - [See seventh Practice - Topic 73 ].

Associations - Cote 3402

Actions par les associations - Généralités - Qualité pour faire la demande - [Voir Associations - Topic 3402 ].

Couronne - Cote 4427

Actions par et contre la Couronne du chef d'une province - Lois sur les procédures contre la Couronne - Actions auxquelles la loi s'applique - [Voir Crown - Topic 4427 ].

Couronne - Cote 4432

Actions par et contre la Couronne du chef d'une province - Lois sur les procédures contre la Couronne - Avis de poursuite - [Voir Crown - Topic 4432 ].

Couronne - Cote 4542.1

Actions par et contre la Couronne du chef d'une province - Qualité de la Couronne à être poursuivie - Immunité légale - [Voir Crown - Topic 4542.1 ].

Droit constitutionnel - Cote 9954

Procédure - Avis à la Couronne et aux parties intéressées de la contestation de la validité ou de l'applicabilité d'une loi - [Voir Constitutional Law - Topic 9954 ].

Droits et libertés - Cote 8351

Charte canadienne des droits et libertés - Application - Exceptions - Immunité de la Couronne - [Voir Civil Rights - Topic 8351 ].

Droits et libertés - Cote 8586

Charte canadienne des droits et libertés - Procédure - Manière d'invoquer la Charte - Nécessité d'établir un fondement factuel - [Voir Civil Rights - Topic 8586 ].

Procédure - Cote 73

Introduction de l'action - Choix de la méthode d'instruction de l'action - Action ou requête? - [Voir Practice - Topic 73 ].

Procédure - Cote 204.3

Personnes pouvant ester en justice - Corporations - Associations et coopératives - [Voir Practice - Topic 204.3 ].

Cases Noticed:

635972 N.B. Ltd. v. Wilson (2010), 367 N.B.R.(2d) 146; 946 A.P.R. 146; 2010 NBQB 346 (T.D.), refd to. [para. 7].

Fleck v. Baxter (1989), 94 N.B.R.(2d) 329; 239 A.P.R. 329 (C.A.), refd to. [para. 7].

Steeves v. Moncton (City) et al. (2003), 260 N.B.R.(2d) 383; 684 A.P.R. 383; 2003 NBQB 71, refd to. [para. 31].

Quinn et al. v. New Brunswick et al. (2011), 377 N.B.R.(2d) 97; 972 A.P.R. 97; 2011 NBQB 182, dist. [para. 9].

Patmar Holdings Ltd. v. Riverview (Town) (1995), 164 N.B.R.(2d) 1; 421 A.P.R. 1 (C.A.), refd to. [para. 11].

Harrison et al. v. Canada (Attorney General) et al. (2005), 290 N.B.R.(2d) 70; 755 A.P.R. 70; 2005 NBQB 232, refd to. [para. 13].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 16].

Irving Oil Ltd. v. Industrial Inquiry Commission (N.B.) (1996), 174 N.B.R.(2d) 37; 444 A.P.R. 37 (C.A.), refd to. [para. 23].

Bedford et al. v. Canada (Attorney General) (2013), 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, dist. [para. 24].

R. v. Mangrove (K.) et al. (2009), 289 Nfld. & P.E.I.R. 151; 890 A.P.R. 151; 2009 NLTD 115, dist. [para. 24].

Renaud et al. v. Nova Scotia (Attorney General) et al. (2005), 236 N.S.R.(2d) 164; 749 A.P.R. 164; 2005 NSSC 226, dist. [para. 24].

R. v. W.K.L., [1991] 1 S.C.R. 1091; 124 N.R. 146, refd to. [para. 26].

Ross v. Human Rights Board of Inquiry (N.B.) (1990), 105 N.B.R.(2d) 29; 264 A.P.R. 29 (T.D.), refd to. [para. 28].

New Brunswick v. Reid, 2001 CarswellNB 87, refd to. [para. 28].

4C Concerned Citizens of Cumberland County v. Cumberland (County), [1997] N.S.J. No. 165 (S.C.), refd to. [para. 29].

MacDonald v. Apex Industries Ltd. and Key Mechanical Ltd. (1992), 126 N.B.R.(2d) 427; 317 A.P.R. 427 (C.A.), refd to. [para. 32].

Kingsway General Insurance Co. v. Alberta (2004), 358 A.R. 94; 2004 ABQB 317, refd to. [para. 32].

Asbestos Workers Pension Trust Fund of Alberta et al. v. Matkovic Holdings Ltd. et al., [2008] A.R. Uned. 401; 2008 ABQB 304, refd to. [para. 32].

Borg-Warner Acceptance Canada Ltd. v. Law Society of New Brunswick (1988), 88 N.B.R.(2d) 3; 224 A.P.R. 3 (T.D.), refd to. [para. 32].

Richard et al. v. British Columbia (2009), 270 B.C.A.C. 61; 454 W.A.C. 61; 93 B.C.L.R.(4th) 87; 2009 BCCA 185, refd to. [para. 40].

McNeil v. Nova Scotia Board of Censors (1974), 9 N.S.R.(2d) 483 (C.A.), affd. [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85, refd to. [para. 41].

LawPost v. New Brunswick (2000), 225 N.B.R.(2d) 256; 578 A.P.R. 256 (C.A.), consd. [para. 42].

Union of Nova Scotia Indians et al. v. Nova Scotia (Attorney General) et al. (1999), 180 N.S.R.(2d) 314; 557 A.P.R. 314; 1999 NSCA 160, refd to. [para. 46].

Statutes Noticed:

An Act Respecting Public Service Pensions, S.N.B. 2013, c. 44, sect. 9(2) [para. 34].

Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-18, sect. 15(1) [para. 39].

Rules of Court (N.B.), rule 9.02 [para. 37]; rule 16.04(a), rule 16.04(e), rule 16.04(i), rule 16.04(j) [para. 6].

Counsel:

Avocats:

Allison Whitehead, Q.C., Jennifer M. Ingram and Ari N. Kaplan, for the applicants;

Stephen J. Hutchison and Jeffrey Parker, for the respondents.

This motion was heard on September 29, 2014, before Morrison, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on November 17, 2014.

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