A-624-75
Dame Juliette Tremblay (Plaintiff-Appellant)
v.
The Queen (Defendant-Respondent)
Court of Appeal, Jackett C.J., Pratte J. and Hyde
D.J.—Quebec City, June 21, 1976.
Crown—Torts—Appeal from decision of Trial Division
striking out declaration for damages sustained by appellant as
a result of death of son caused by negligence of servant of
respondent—Trial Division holding no action lies against
Crown where pension being paid or payable—Pension Act,
R.S.C. 1970, c. P-7, s. 36—R.S.C. 1970, c. 22 (2nd Supp.) ss.
1.1, 88—Crown Liability Act, R.S.C. 1970, c. C-38, s. 4—
Quebec Civil Code, art. 1056.
The Trial Division struck out a declaration for damages by
appellant as a result of the death of her son, a member of the
Canadian Forces Reserve, caused by the negligence of a servant
of respondent. The declaration was struck out on the basis that
under either section 4(1) off the Crown Liability Act or section
88 of the Pension Act, no action lies against the Crown where a
pension is being paid or is payable. Appellant appealed.
Held, the appeal is allowed. Neither appellant nor anyone
else has been paid or awarded any pension, and, assuming the
correctness of allegations in the declaration, it follows that no
pension is "payable". However, the Trial Division found that a
pension "may be awarded" within the meaning of those words
in section 88 of the Pension Act, in respect of such death, at
some future time by virtue of section 36 of the Act. Under the
Act, the Pension Commission has a conditional jurisdiction to
award a pension to a parent in respect of the death of a member
of the Forces if the parent is in a "dependent condition" and, at
the time of death, was wholly or substantially maintained by
the deceased. Here, it cannot be said that a pension "may be
awarded", assuming the truthfulness of the allegations. The
Commission has a further jurisdiction to award a pension under
section 36(3) if it subsequently appears that the parent has
become dependent, has become incapacitated and that such
member of the Forces, had he not died, would have wholly or
substantially, in the Commission's opinion, maintained the
parent. The Trial Division's view has the effect of extinguishing
a cause of action in circumstances where the facts may never
support an award. Parliament did not intend such a harsh
effect. Section 88 must be construed as restricted to cases
where a pension has been awarded, and those where it may be,
based on facts in existence at the time it is invoked. There
appears to be no reason why Parliament would have enacted a
broader rule in respect of potential pensioners under the Pen
sion Act than that adopted for all other cases under section 4 of
the Crown Liability Act. As to respondent's claim based on the
exclusive jurisdiction of the Commission, in view of the fact
that section 88 is, by its nature, such that it is intended to be
raised in a court of law, a court must have power to interpret it
when so raised.
Per Pratte J. (dissenting): The judgment of the Trial Division
should be upheld. It is not necessary, in order to hold that a
pension "may be awarded", to establish that all the other
necessary facts requisite to the right to a pension already exist.
There is no reason to limit the plain meaning of the words in
section 88. The Pension Act is a code which exclusively regu
lates the rights of servicemen and their relatives to indemnifica
tion for injuries suffered during military service. To otherwise
interpret the section leads to an unjust distinction between the
plaintiff who, at the moment of exercising his common law
rights, already satisfies the necessary requirements for a pen
sion, and others, who will fulfill the requirements several days
later.
APPEAL.
COUNSEL:
B. Lesage for plaintiff-appellant.
Y Brisson for defendant-respondent.
SOLICITORS:
Thibaudeau, Lesage, Thibaudeau and
Nepveu, Quebec City, for plaintiff-appellant.
Deputy Attorney General of Canada for
defendant-appellant.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from a judg
ment of the Trial Division striking out a declara
tion for damages sustained by the appellant as a
result of the death of her 16-year old son caused
by the negligence of a servant of the respondent.
The judgment was based on either section 4(1)
of the Crown Liability Act, which reads:
4. (1) No proceedings lie against the Crown or a servant of
the Crown in respect of a claim if a pension or compensation
has been paid or is payable out of the Consolidated Revenue
Fund or out of any funds administered by an agency of the
Crown in respect of the death, injury, damage or loss in respect
of which the claim is made.
or section 88 of the Pension Act, which reads:
88. No action or other proceeding lies against Her Majesty
or against any officer, servant or agent of Her Majesty in
respect of any injury or disease or aggravation thereof resulting
in disability or death in any case where a pension is or may be
awarded under this or any other Act in respect of such disabili
ty or death 1 .
The application giving rise to the judgment
attacked is based on the assumption that the alle
gations in the declaration, with an exception that
does not require to be mentioned for present pur
poses, are true.
Neither the appellant nor anyone else has been
paid or awarded, in so far as such allegations are
concerned, any pension in respect of the son's
death, and, assuming all such allegations to be
true, it follows that no pension is "payable" in
respect thereof to any person.
The learned Trial Judge has, however, apparent
ly found that a pension "may be awarded", within
the meaning of those words in section 88, in
respect of such death at some time in the future by
virtue of section 36 of the Pension Act, which
reads, in part:
36. (1) In any case where pension may be awarded under
section 12 in respect of the death of a member of the forces, the
parent or person in the place of the parent of the member is
entitled to a pension if
(a) the member died without leaving any widow or divorced
wife who is entitled to pension or a woman awarded a
pension under subsection 34(4), and
(b) the parent or person in the place of the parent is in a
dependent condition and was, at the time of the death of the
member, wholly or to a substantial extent maintained by
him.
(3) When a parent or person in the place of a parent who
was not wholly or to a substantial extent maintained by the
member of the forces at the time of his death, subsequently
falls into a dependent condition, such parent or person may be
awarded a pension, if he or she is incapacitated by mental or
physical infirmity from earning a livelihood, and in the opinion
of the Commission such member of the forces would have
wholly or to a substantial extent maintained such parent or
person had he not died.
He based this conclusion on the following part of
the declaration:
1 As originally enacted, the words "is awardable" appeared
in section 88 in place of "may be awarded".
15. The loss of Christian Martineau was especially burdensome
for plaintiff since this was her last son, he was single and he
lived with her; the other children she had from her marriage
with the late Alfred Martineau were all married.
16. Young Christian Martineau was very attached to his
mother and his family, whom he helped as much as possible; he
did very well in his studies at the Samuel de Champlain
regional high school, where he was about to enter Grade 11,
and had prospects for a remunerative career at least as promis
ing as those of the other members of his family.
17. In addition to the expenses occasioned by the death, which
plaintiff had to assume since there were no assets in her son's
estate, plaintiff has been deprived of the assistance which her
son would quite naturally have given her when she reached
retirement age, irrespective of any physical or mental disability
which might occur.
As I read the Pension Act, the Pension Commis
sion has a conditional jurisdiction to award a
pension in respect of the death of a member of the
forces to his parent if the parent "is in a dependent
condition" and "was, at the time of the death of
the member, wholly or to a substantial extent
maintained by him" (section 36(1)). As of the
time of the declaration, it could not be said that,
under this aspect of its jurisdiction, a pension
"may be awarded" by the Commission in respect
of the death of the appellant's son, based upon an
assumption of the correctness of the allegations in
the declaration.
There is, however, also vested in the Commis
sion (section 36(3)) a jurisdiction to award a
pension to a parent, even though the parent was
not at the time of the death "wholly or to a
substantial extent maintained by the [deceased]
member of the forces", if, subsequently, it appears
(a) that the parent has fallen into a dependent
condition,
(b) that the parent has become incapacitated
from earning a livelihood, and
(c) that such member of the forces would, in
the opinion of the Commission, have wholly or
to a substantial extent maintained such parent
had he not died.
The existence, at the time of the declaration, of
this aspect of the Commission's jurisdiction sup
ports the decision of the Trial Division if the words
"may be awarded" in section 88 extend the opera
tion of that section to every case where, at the time
of the declaration, it can be said that there is a
possibility that, sometime in the future, circum
stances will arise that will vest in the Commission
jurisdiction to award a pension in respect of the
death.
Section 88 is, however, in my view, susceptible
of another interpretation, namely, that it only
applies where, at the time that it is being invoked,
there are facts that vest in the Commission an
existing jurisdiction to award a pension in respect
of the death.
The broader view as to the ambit of section 88,
which appears to have been adopted by the Trial
Division, has the effect of extinguishing a cause of
action in circumstances where the facts may never
support a pension award. For example, the Court
may find in this case that the plaintiff has an
expectation that would support a judgment under
article 1056 of the Civil Code 2 even though the
facts would not, at some subsequent time, support
a conclusion by the Commission that the member,
had he not died, "would have wholly or to a
substantial extent maintained such parent". Had
Parliament intended, by section 88, to adopt a rule
having such a harsh effect and to abolish any
cause of action in respect of a death of a member
of the forces arising out of or connected with
military service, it could have made that intention
clear by saying so. Having regard to the way in
which section 88 is framed, I am not persuaded
that Parliament did intend such a harsh effect and
I am of opinion that section 88 must be construed
as restricted to cases where a pension has been
awarded and cases where a pension may be award
ed on facts in existence at the time that it is
invoked. There does not appear to me to be any
reason why Parliament would have enacted a
broader rule in respect of potential pensioners
under the Pension Act than that adopted for all
other cases by section 4 of the Crown Liability
Act.
2 Article 1056 of the Civil Code reads:
Art. 1056. In all cases where the person injured by the
commission of an offence or a quasi-offence dies in conse
quence, without having obtained indemnity or satisfaction,
his consort and his ascendant and descendant relations have
a right, but only within a year after his death, to recover
from the person who committed the offence or quasi-offence,
or his representatives, all damages occasioned by such death.
I am, therefore, of opinion that the appeal
should be allowed with costs and that the judg
ment of the Trial Division should be set aside.
With reference to the contention in the respond
ent's memorandum based upon the exclusive juris
diction of the Commission, in view of the fact that
section 88 is, by its nature, such that it is intended
to be raised in a court of law, it seems to me that a
court of law must have power to interpret it when
it is so raised. If a court cannot interpret section
88, I fail to see how the respondent can ever base
itself upon section 88, at least in a case where it is
relying upon the mere possibility of an award of
pension sometime in the future.
* * *
HYDE D.J. concurred.
* * *
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: I would affirm the decision of the
trial judge and dismiss the appeal with costs.
It has been established that what is involved
here, to use the language of section 88 of the
Pension Act, is an action brought "against Her
Majesty ... in respect of any injury ... resulting
in ... [the] death" of a Canadian serviceman. The
only question raised by the appeal seems to me to
be whether this is a case in which, again under
section 88, "a pension ... may be awarded ... in
respect of such . .. death". It is on this point that I
differ with the Chief Justice, believing that this
question should be given an affirmative answer.
In my opinion, in a case where a member of the
Armed Forces has been "disabled or has died as a
result of military service" (section 1.1), it is not
necessary, in order to be able to say that this is a
case where "a pension ... may be awarded" to the
victim or his next of kin, that all the other facts to
which the right to a pension is subject already
exist. It is sufficient that these facts may exist. In
my opinion, this is the normal meaning of the
words used in section 88, and I do not see any
reason to limit their scope. The Pension Act, in my
opinion, constitutes a code which, to the exclusion
of any other act, governs the right of servicemen
and their next of kin to be compensated for inju
ries suffered as a result of military service. To
interpret section 88 otherwise involves making a
distinction which I consider unwarranted between
the applicant who, at the time he exercises his
remedy under the common law, already fulfills all
the conditions for obtaining a pension, and the
applicant who will not fulfill these conditions until
a few days later.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.