Reid v. Canada (F.C.) [2005] 3 F.C. 41
Date: 20050201
Docket: T-1978-02
Citation: 2005 FC 158
Montreal, Québec, February 1, 2005
Present: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
ANDREA LILLIAN REID
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] The defendant seeks summary judgment against Mrs. Reid on the ground that there is no genuine issue for trial because the only matter in dispute is a question of law.
[2] The parties have agreed that if Mrs. Reid succeeds on this motion, damages will be calculated individually for each member of the class that the plaintiff represents assuming that the Court certifies the class. The parties have filed in that respect, a copy of their agreement which contains the formula to calculate the damages applicable to each individual of the class.
[3] The parties have also agreed that the class certification motion will proceed after judgment is rendered on this motion on an uncontested basis.
[4] The question of law to be determined on this motion is the proper interpretation of the word "salary" in subsection 47(1) of the Public Service Superannuation Act ("PSSA") for the purpose of calculating the basic benefit payable to beneficiaries of elective participants. Specifically, the Court must determine whether a retroactive salary increase authorized and paid to an elective participant after he or she retires, forms part of his or her salary for the purpose of calculating the basic benefit payable to his or her beneficiary.
[5] In addition to this proposed class action, the parties are involved in two other class proceedings before the Supreme Court of British Columbia (Vancouver Registry No. L0109-10 and Vancouver Registry No. L0113-56). It has been agreed that for the purpose of this motion, the Court need not decide the nature of the supplementary death benefit provided for in Part II of the PSSA. Thus, nothing in the following reasons should be construed as giving any opinion or having any impact on the nature of the said benefit.
Background
[6] As indicated, the parties agree that there are no factual issues requiring an assessment and weighing of evidence by the Court. The facts required to determine the legal issue raised in this action are not in dispute and they are as follows.
[7] Mrs. Reid is the widow of Douglas W. Reid, who was an employee of the Government of Canada, from August 26, 1974, until March 31, 1998, when he took early retirement from his position as a senior planning officer with Parks Canada.
[8] While employed by the Government, Mr. Reid was an active participant in the Supplementary Death Benefit Plan ("SDBP") established pursuant to Part II of the PSSA.
On April 2, 1998, Mr. Reid signed an "election to continue as a participant under the supplementary death benefit plan".[1] This election confirmed that Mr. Reid remained a member of the SDBP as an elective participant. Mrs. Reid was his designated beneficiary under the plan.
[9] When Mr. Reid retired, his salary for that year was $53,492. However, the Treasury Board and the Public Service Alliance of Canada were in negotiation for a new collective agreement as the previous agreement had expired on June 20, 1997.[2]
[10] The new collective agreement was signed on December 29, 1998, and Mr. Reid's rate of pay was subject to a retroactive increase effective June 21, 1997.[3] After the new collective agreement was signed, Mr. Reid was paid the increased rate of pay for the period between June 20, 1997, and his retirement date. His pension was also adjusted to reflect this increased salary at the time of his retirement.
[11] Mr. Reid was later diagnosed with leukemia and he died on December 3, 2000. Following his death, Mrs. Reid received the SDBP basic benefit calculated on the basis of Mr. Reid's salary of $53,492 without taking into account the retroactive increase, that he received. In her proposed class action, she claims that this increase should have been included in the salary used to establish her husband's SDBP basic benefit. She seeks payment of this additional amount for herself and for each member of the proposed class.
[12] The PSSA contains three parts. Part I deals with pension or superannuation, Part II establishes the SDBP applicable to employees in the Public Service (active participants) as well as retired Public Service employees who have elected to continue to participate in the plan (elective participants) and Part III deals with other supplementary benefits. The expression "salary" is defined in Part I and Part II as follows:[4]
Public Service Superannuation Act
PART I
SUPERANNUATION
Interpretation
3. (1) In this Part,
"salary" means
(a) as applied to the Public Service, the basic pay received by the person in respect of whom the expression is being applied for the performance of the regular duties of a position or office exclusive of any amount received as allowances, special remuneration, payment for overtime or other compensation or as a gratuity unless that amount is deemed to be or to have been included in that person's basic pay pursuant to any regulation made under paragraph 42(1)(e), and
(b) as applied to the regular force or the Force, the pay or pay and allowances, as the case may be, applicable in the case of that person as determined under the Canadian Forces Superannuation Act or the Royal Canadian Mounted Police Superannuation Act.
Loi sur la Pension de la fonction publique
PARTIE I
PENSION DE RETRAITE
Définitions et interprétation
3. (1) Les définitions qui suivent s'appliquent à la présente partie.
« traitement »
a) La rémunération de base versée pour l'accomplissement des fonctions normales d'un poste dans la fonction publique, y compris les allocations, les rémunérations spéciales ou pour temps supplémentaire ou autres indemnités et les gratifications qui sont réputées en faire partie en vertu d'un règlement pris en application de l'alinéa 42(1)e);
b) la solde, ainsi que les allocations, payables dans le cadre de la force régulière ou de la Gendarmerie en vertu de la Loi sur la pension de retraite des Forces canadiennes ou de la Loi sur la pension de retraite de la Gendarmerie royale du Canada.
PART II
SUPPLEMENTARY DEATH BENEFITS
Interpretation
47. (1) In this Part,
"basic benefit", with respect to a participant, means an amount equal to twice the salary of the participant, if that amount is a multiple of one thousand dollars, or an amount equal to the nearest multiple of one thousand dollars above twice the salary of the participant, if the
first-mentioned amount is not a multiple of one thousand dollars, subject to a reduction of ten per cent,
sous réserve d'une déduction de dix pour cent, faite à
compter de la date prévue par les règlements, pour chaque année de l'âge du participant ultérieure à soixante-cinq ans, sauf que_:
...
PARTIE II
PRESTATIONS SUPPLÉMENTAIRES DE DÉCÈS
Définitions et interprétation
47. (1) Les définitions qui suivent s'appliquent à la présente partie.
« _prestation de base_ » Soit le montant égal au double du traitement du participant si ce montant est un multiple de mille dollars, soit le montant égal au plus petit multiple de mille dollars qui dépasse le double du
traitement du participant si le montant mentionné en premier n'est pas un multiple de mille dollars,
to be made as of the time that the regulations prescribe, for every year of age in excess of sixty-five attained by the participant, except that
...
| "salary" means (a) in the case of a participant employed in the Public Service, the salary as defined for purposes of Part I, expressed in terms of an annual rate, except that where a retroactive increase is authorized in the salary of that participant, the increase shall be deemed to have commenced to have been received by him on such day as the regulations prescribe,(b) in the case of an elective participant, his salary in the Public Service at the time he ceased to be employed in the Public Service, expressed in terms of an annual rate, and (c) in the case of a participant who is required to contribute to the Retirement Compensation Arrangements Account by section 8 or 9 of the Retirement Compensation Arrangements Regulations, No. 1, the salary referred to in subsections 8(3) or 9(1) of those Regulations.
(2) In this Part, words and expressions other than those mentioned in subsection (1) have the same meaning as in Part I. |
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« traitement » a) Dans le cas d'un participant employé dans la fonction publique, le traitement défini pour l'application de la partie I, exprimé sous forme de taux annuel, sauf que lorsqu'une augmentation rétroactive est autorisée sur le traitement d'un tel participant, celui-ci est réputé avoir commencé à la percevoir le jour fixé par règlement; b) dans le cas d'un participant volontaire, son traitement dans la fonction publique au moment où il a cessé d'y être employé, exprimé sous forme de taux annuel; c) dans le cas d'un participant qui est astreint à contribuer au compte de régimes compensatoires par les articles 8 ou 9 du Règlement no 1 sur le régime compensatoire, le traitement visé aux paragraphes 8(3) ou 9(1) de ce règlement.
(2) Dans la présente partie, les termes autres que ceux définis au paragraphe (1) s'entendent au sens de la partie I.
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[13] The PSSA was originally adopted in 1953 and it dealt only with the subject of pension or superannuation. Part II was enacted in 1954 to effectively replace the previous gratuity of two months salary payable on the death of a public servant under the Civil Service Amendment Act, 1908 S.C. c.15, s. 41.[5]
[14] In 1954, the SDBP applied not only to members of the Public Service but also to members of the Canadian Armed Forces. In 1966, Part II of the Canadian Forces Superannuation Act, S.C. 1959, c. 21 ("CFSA") was enacted and the provisions of Part II of the the PSSA applicable to members of the Armed Forces were deleted. (See Annex 1)
[15] The parties agree that of all the provincial and federal statutes dealing with this subject of supplementary death benefit and superannuation, the CFSA is the only one that can shed some light on the interpretation of subsection 47(1) of the PSSA and that it should therefore be considered by the Court in determining the meaning of salary in subsection 47(1).
[16] The parties are agreed that the Court should apply the principles of statutory interpretation summarized by Justice Iacobucci, as he then was, in Bell ExpressVu v. Rex, [2002] 2 S.C.R. 559 at 580 and 581 as follows:
In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: ... I note as well that in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article "Statute Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. l, at p. 6, "words, like people take their colour from their surroundings". This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger's principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as "the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter".
[17] It is not disputed that the definition of salary in subsection 47(1) of PSSA which applies to active participants includes retroactive salary increases. This is because such increases are included in the definition of salary in Part I. Although this is not readily apparent from a cursory reading of this definition in Part I, it is said that when one considers the legislative evolution and history of this provision and particularly, the decision in Gruber v. Canada (Treasury Board), [1975] F.C. 578, (F.C.A.), it becomes undisputable that such retroactive increases are part of the "basic pay" or "rémunération de base" received for regular services by an employee in the Public Service.
[18] That being said, using the interpretative principles referred to in Bell ExpressVu, supra, the defendant argues that the definition of salary in Part II, applicable to elective participants such as Mr. Reid, does not include those retroactive salary increases because the words "at the time he ceased to be employed in the Public Service" limit the expression "salary in the Public Service." Therefore, consideration of any adjustments made after the date of retirement of the elective participants, is necessarily precluded.
[19] The defendant also says that it is not inconsistent or illogical to conclude that different categories of participants would be treated differently. This is especially so when the legislature has clearly dictated a difference in the calculation of the salary for elective participants by adopting different definitions for each type of participant. The Court cannot therefore use the case law dealing with the notion of salary as defined in Part I of the PSSA.
[20] Furthermore, according to the defendant, Parliament made its intention even clearer in that respect when it chose in 1966, not to make the deeming provisions in the Supplementary Death Benefit Regulations[6] applicable to both active and elective participants. It had done so with respect to the SDBP applicable to Canadian Armed Forces when it enacted what is now section 60 of the CFSA. Thus, the Court should give full effect to the maxim expressio unius est exclusio alterius.
[21] Using the same interpretative approach, the applicant came to the opposite conclusion. She says that when one considers the scheme of the Act, it is clear that the words "at the time he ceased to be employed in the Public Service" were only added to specify that the basic benefit provided for under the SDBP plan was calculated using the last salary received by an elective participant as a Public Service employee.
[22] According to Mrs. Reid, the wording of section 60 of the CFSA confirms her interpretation rather than the one proposed by the defendant.
[23] Finally, Mrs. Reid argues that three other elements of the legislative history relevant to the interpretation of subsection 47(1) further support her interpretation. First, the Retroactive Remuneration Regulations adopted in 1964 (S.O.R./64-371) gave authority to the Governor in Council or the Treasury Board to approve and pay retroactive salary increases not only to employees but also to persons who ceased to be employees because of retirement. Then, according to the Public Service Superannuation Act Administrative Circular 1964-13 produced by the Department of Finance, Superannuation Branch, dated October 29, 1964, and the Treasury Directive 64-121 dated December 9, 1964, these regulations were construed to apply specifically to the SDBP for elective participants.
[24] Finally, Mrs. Reid says that her interpretation of "salary" is in line with the common law definition of salary discussed in Gruber, supra, and in Canadian Air Traffic Controllers Association v. The Queen, [1985] 2 F.C. 84 (F.C.A.).
[25] The evolution and the elements of the legislative history of the relevant sections of the PSSA and of the CFSA referred to by the parties are reproduced in Annex 1.
Analysis
[26] Both parties are agreed that despite a few cosmetic amendments to clarify, for example that the definition refers to the annual rate as opposed to the weekly or monthly rate of pay, the definition of salary for elective participants has not changed since its initial adoption in 1954.
[27] It is thus relevant to examine the overall scheme of the PSSA at that time to see if it sheds any light on the intention of the legislator when he enacted the definition in Part II.
[28] Before the SDBP was added, the only definition of "salary" in the Act was the following:
Public Service Superannuation Act, S.C. 1952-53, C. 47
S. 2(1): "salary" means the compensation received for the performance of the regular duties of a position or office.
[29] It is agreed that insofar as employees in the Public Service are concerned, this definition of salary reads essentially like the definition discussed in Gruber, supra, that was held to include retroactive increases. As mentioned by Chief Justice Jackett, speaking for the Court in that case, at page 581-582:
At the time when the Public Servant performs the services required of him to discharge the duties of his position, he is paid the salary (compensation) for those services to which he is, by law, entitled. When the wage rates are increased retroactively, he is, in effect, given a duly authorized extra amount or "bonus" in respect of such services. The fact that such bonus is authorized or contracted for after the event does not make it any the less a payment (compensation) for such services even though they have already been rendered.
(emphasis added)
[30] The definition in subsection 2(1) above was obviously insufficient to satisfy the requirement of the new SDBP which was intended to cover active participants from the Public Service as well as the Canadian Armed Forces and elective participants from both groups. For example, this last category was no longer receiving any compensation for the performance of the regular duties of a position or office.
[31] With respect to active Public Service participants, the definition in Part II introduced in 1954 was essentially the same as in Part I. By using words such as "his salary in the Public Service" to define the salary of an elective Public Service participant, the legislator appears to be also referring to the compensation that such participants received for the performance of his or her regular services or duties while employed in the Public Service.
[32] The SDBP provides for the payment of a "basic benefit" which is defined by reference to several elements, the most important being the salary of the participant.[7] With respect to elective participants, this meant that Parliament had to specify which of the various salaries such participants had received while in the employ of the Public Service would be used for this calculation.
[33] In my view, the language of the English and French versions of the definition of salary found at subparagraph 39(1)(i)(iii) (a previous version of subsection 47(1)) clarifies this issue as to which salary of the elective participant is to be used. It does not however, shed any light on whether Parliament intended to exclude from the compensation actually received by an elective participant for the regular duties performed at the time of his retirement, the retroactive increases or any other type of adjustment which were actually authorized and received for that period but after the date of retirement.
[34] The next relevant event in the legislative history is the adoption of the Retroactive Remuneration Regulations (the "Regulations").
[35] Pursuant to section 2 of the said Regulations, the expression "applicable statutes" includes the PSSA and the CFSA, and "remuneration" includes compensation upon which benefits are based for the purposes of the "applicable statutes".
[36] As mentioned earlier, section 3 of the Regulations gave express authority to the Treasury Board or the Governor in Council to approve retroactive upward revisions in remuneration with an effective date of July 1, 1963, or after, to employees as well as persons who ceased to be employees during the retroactive period because of retirement.
[37] Section 8 of the Regulations specifically provided for exceptions. That is, instances where the retroactive revisions paid pursuant to these regulations should not be considered as remuneration. The parties are agreed that none of these exceptions are relevant to the present matter.
[38] It is to be noted that the Regulations also expressly provide that "the Treasury Board may direct the manner in which these Regulations apply in any case of doubt".
[39] On October 29, 1964, the Department of Finance, Superannuation Branch, issued a circular entitled Public Service Superannuation Act Administrative Circular 1964-13, Retroactive Salary Increases. Its stated purpose was to explain the effect of the Regulations on the PSSA.
[40] At paragraph 2 entitled Supplementary Death Benefits, it says:
Supplementary Death Benefit coverage under Part II of the Public Service Superannuation Act may also be altered by retroactive salary increases pursuant to the Retroactive Remuneration Regulations, if approved on or after September 10, 1964. That is, additional contributions in relation to the retroactive period are required if the basic benefit is retroactively increased. Furthermore, if that occurs during such period, the Supplementary Death Benefit is payable in the amount of any increased basic benefit.
[41] This interpretation was confirmed by the issuance of Treasury Directive 64-121 on December 9, 1964 which specifies among other things that:
Because there has apparently been some doubt in some of the paying offices as to the categories of employees to whom, and the circumstances in which, the regulations apply, a general summary of their application is given below, as well as the effects of the changes made by the new regulations effective September 10, 1964....
[42] Then, in subsection 3(iii) "Effect on Benefits Under Applicable Statutes" at paragraph 2 - Supplementary Death Benefit, the Directive states:
Where an upward revision of remuneration is authorized on or after September 10, 1964, and the revised rate to which a participant is entitled has the effect of increasing his basic death benefit under Part II of the Public Service Superannuation Act, contributions are to be adjusted on the basis of the increased basic benefit for the retroactive period. This applies equally to periods of absence without pay, and to elective participants who became entitled by application.
Where that has occurred, the benefit is increased accordingly. (emphasis added)
[43] The defendant submits that these administrative interpretations were wrong and that the Regulations were inoperable inasmuch as they intended to broaden the definition of salary provided for in Part II of PSSA for elective Public Service participants.
[44] However, as mentioned earlier, the Court finds that the definition in the PSSA in 1964 was not clear enough to say that these Regulations were on their face inoperable. Also, the Regulations themselves do not clearly indicate that they apply to calculate the basic benefit payable to an elective participant. This question had to be clarified through a directive.
[45] Obviously, the Court is not bound by these administrative interpretations. Such documents can be useful but all they do is offer an opinion that is more or less persuasive depending on the circumstances and the overall context.[8]
[46] The Treasury Directive 64-121 was not replaced or formally repealed. There was no other directive issued with respect to the impact of the Regulations on the calculation of supplementary death benefits.[9]
[47] In 1966, Parliament amended the definition of salary applicable to active participants (subparagraph (39(1)(a)(i) of PSSA). At the same time, it deleted the provisions dealing with salary of active and elective participants from the Canadian Armed Forces transferring them in an amended version in the new Part II of the CFSA.
[48] The new paragraph 44 (1) of the CFSA read as follows:
(f) "salary" means
(i) in the case of a participant who is a member of the regular forces, the greater of
(A) the pay of that participant, expressed in terms of an annual rate, or
(B) three thousand dollars per annum if his rank is lower than chief petty officer in the Royal Canadian Navy or warrant officer in the Canadian Army or Royal Canadian Air Force, or five thousand dollars per annum if rank is chief petty officer or higher in the Royal Canadian Navy or warrant officer in the Canadian Army or Royal Canadian Air Force, and
(ii) in the case of an elective participant, the greater of
(A) the pay that the participant at the time he ceased to be a member of the regular forces, expressed in terms of an annual rate, or
(B) three thousand dollars per annum if his rank at the time he ceased to be a member of the regular forces was lower than chief petty officer in the Royal Canadian Navy or warrant officer in the Canadian Army or Royal Canadian Air Force, or five thousand dollars per annum if his rank at that time was chief petty officer or higher in the Royal Canadian Navy or warrant officer or higher in the Canadian Army or Royal Canadian Air Force,
except that where a retroactive increase is authorized in the pay of that participant, such increase shall be deemed to have commenced to have been received by him on such day as the regulations prescribe;
(emphasis added)
[49] The same exception that the defendant refers to as the "deeming provisions" starting with "except that" was also added in paragraph 39(1)(i) of PSSA.[10]
[50] As mentioned, the defendant argues that this new wording confirms that retroactive increases are included in the definition of salary only with respect to active participants in the PSSA whereas they are included in the pay of both active and elective participants in the CFSA. The silence of the legislator who chose not to apply this new deeming provision to elective Public Service participants can only confirm that such retroactive increases are excluded from the salary of such elective participants by the words "at the time he ceased to be employed in the Public Service".
[51] With all due respect, the Court simply cannot agree with this view.
[52] The legislator is presumed to use language carefully and consistently so that the same words have the same meaning. This presumption of coherence and consistency also applies when two different statutes (here the PSSA and the CFSA) are enacted to deal with the same subject as if their provisions were part of a single act.
[53] This is even more so when the amendments to both statutes are contained in the same act (Statute Law (Superannuation) Amendment Act, 1966 S.C. c.44) for this confirms that Parliament had both statutes clearly in mind when it drafted these provisions.
[54] Parliament chose to use the same words "at the time he ceased to be a member of the regular Force", to define the salary of an elective participant in the CFSA.
[55] The Court agrees with the defendant that it is very clear from the wording of subsection 44(1) of the CFSA (now s. 60) that the salary of such elective participants could include retroactive increases to which the deeming provisions will apply.
[56] This result was not achieved by adopting the paragraph starting with "except that" or "sauf que" as this sets out an exception or limitation to the wider statement made previously in clause 44 (1)(f)(ii)(A).
[57] This element therefore supports Mrs. Reid's interpretation. It also appears to support the interpretation set out in the Treasury Directive which was presumably known to the legislator in 1966.
[58] The parties agree that there is no evidence as to why or when the administrative interpretation or practice changed and that nothing happened after 1966 that could help us construe subsection 47(1) of the PSSA.
[59] We only know that the Regulations were repealed in 2000 because they had become obsolete given that the power of the Treasury Board to authorize and pay retroactive remuneration increases was now embodied in other legislative instruments (Financial Administration Act, R.S.C. c. F.11).
[60] At the hearing, the parties spent some time explaining their opposite views of how and why the deeming provisions were different in the PSSA and the CFSA. The Court is not satisfied that the motive of the legislator was properly established. In the circumstances, this particular element is not useful in determining the proper interpretation of subsection 47(1).
[61] Considering all of the above, I find, that the definition of salary in Part II of the PSSA for elective participants does not exclude retroactive remuneration revisions received by such participants as basic pay for the regular duties performed before the date of their retirements, such as the one paid to Mr. Reid after he retired.
[62] In view of the foregoing, the defendant's motion for summary judgment is denied.
[63] At the hearing, the parties confirmed that they were not seeking any costs.
JUDGMENT
The motion for summary judgment is denied.
"Johanne Gauthier"
Judge
Annex 1
LEGISLATIVE EVOLUTION AND ELEMENTS OF THE HISTORY REFERRED TO BY THE PARTIES FOR "SALARY"
PART I Public Service Superannuation Act
| Public Service Superannuation Act, S.C. 1952-53, C. 47 (May 14, 1953) |
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S. 2(1): "salary" means the compensation received for the performance of the regular duties of a position or office. |
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| Act to Amend the Public Service Superannuation Act, S.C. 1960, C. 38 (July 14, 1960) |
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S. 1(3): Paragraph (1) of section 2 of the said Act is repealed and the following substituted therefor: (1) "salary", as applied to the Public Service, means the compensation received by the person in respect of whom the expression is being applied for the performance of the regular duties of a position or office, and, as applied to the regular forces of the Force, means the pay or pay and allowances, as the case may be, applicable in the case of that person, as determined under the Canadian Forces Superannuation Act or the Royal Canadian Mounted Police Superannuation Act. |
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| Retroactive Remuneration Regulations, P.C. 1964-1417, S.O.R./64-371, (September 10th, 1964)
Repealed on March 23, 2000, S.O.R./2000-116. |
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2. In these Regulations, (a) "applicable statutes" means ... (ii) Canadian Forces Superannuation Act, ... (viii) Public Service Superannuation Act, ... (e) "remuneration" means compensation payable out of the Consolidated Revenue Fund and includes compensation upon which benefits are based for the purposes of the applicable statutes;
3. The Governor in Council or the Treasury Board may approve a retroactive upward revision in remuneration with an effective date of July 1, 1963 or later, which, subject to these Regulations, shall apply to (a) a person who (i) is an employee on the date of the approval notwithstanding that, during the retroactive period, his employment in a department agency in which he was an employee may have been terminated in order to allow him to accept employment in another department or agency or part thereof, or (ii) ceased to be an employee during the retroactive period because of (A) lay-off, (B) retirement, or (C) death, or (b) the estate of a person referred to in paragraph (a).
4. (1) Where a retroactive upward revision in remuneration is approved pursuant to section 3, remuneration shall, subject to these Regulations, be paid to or in respect of a person referred to in paragraph (a) of section 3 in an amount equal to that which would have been paid to or in respect of such person had the revision been approved on the effective date. (2) For the purposes of subsection (1), the calculation of the amount shall not include any period of employment for reasons other than those mentioned in section 3.
5. Subject to section 8, where a retroactive upward revision in remuneration approved pursuant to section 3 is paid to or in respect of a person, the person shall be deemed to have commenced receipt of the remuneration at the beginning of the period in respect of which it is paid.
8. Retroactive remuneration paid pursuant to these Regulations shall not be considered as remuneration (a) for the purpose of making adjustments in penalties for failing to meet attendance requirements; (b) for the purposes of an election made pursuant to clause (A), (AB), (B), or (F) or subparagraph (iii) of paragraph (b) of subsection (1) of section 5 of the Public Service Superannuation Act, subsection (7) of section 6 of the Public Service Superannuation Regulations, clause (K) of subparagraph (ii) of paragraph (b) of section 5 of the Canadian Forces Superannuation Act, or clause (I) of subparagraph (ii) of paragraph (b) of section 5 of the Royal Canadian Mounted Police Act; and (c) for any other purposes as may be prescribed by the Treasury Board.
This submission repeals the Retroactive Remuneration Regulations made by Order in Council P.C. 1964-1417 of September 10, 1964. Under subsection 11(2) of the Financial Administration Act, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management, authorize the rules governing retroactive payments for public servants under the Act, either in a general directive or as negotiated in group specific collective agreements. As well, members of the Royal Canadian Mounted Police and the Canadian Forces are entitled to retroactive payments in accordance with directives approved by Treasury Board. Consequently, the Retroactive Remuneration Regulations are obsolete and have no effect. |
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| Department of Finance, Public Service Superannuation Act Administrative Circular 1964/13 (October 29, 1964)
Department of Finance, Treasury Directive 62-121 (December 9, 1964)
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| Statute Law (Superannuation) Amendment Act, 1966, S.C. 1966, c. 44, s. 22 (July 11, 1966) |
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No change to Part I. |
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| Public Service Superannuation Regulations, amended, S.O.R./66-342, s.3 (July 21, 1966)
s. 54A of the Public Service Superannuation Regulations replaced in 1973 by s. 23 of the Supplementary Death Benefits Regulations S.O.R./73-627 (now cited as C.R.C. 1360)
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54A. For the purposes of Part II of the Act, where a retroactive increase is authorized in the salary of a participant, such increase shall be deemed to have commenced to have been received by him on the first day of the month following the month in which: (a) the Governor in Council of the Treasury Board, as the case may be approves such increase; or (b) written approval of such increase was duly issued by the appropriate authority in any case where approval of the Governor in Council of the Treasury Board is not required. |
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| Public Service Superannuation Act, R.S.C. 1970, c. P-36 (December 31, 1969) |
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s. 2(1): "salary", as applied to the Public Service, means the compensation received by the person in respect of whom the expression is being applied for the performance of the regular duties of a position or office, and as applied to the regular force or the Force, means the pay or pay and allowances, as the case may be, applicable in the case of that person, as determined under the Canadian Forces Superannuation Act or the Royal Canadian Mounted Police Superannuation Act. |
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« traitement » , relativement à law Fonction publique, désigne la rémunération reçue par law personne que vise l'expression pour l'exercise des fonctions régulière ou à la Gendarmerie, désigne la solde ou la solde et les allocations, selon le cas, applicables quant à cette personne, déterminées en vertu de la Loi sur la pension de retraite des Forces canadiennes ou de la Loi sur la pension de retraite de la Gendarmerie royale du Canada. |
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| Gruber v. Canada (Treasury Board), [1975] F.C. 578 (C.A.)(QL) (June 4, 1975) |
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| House of Commons Debates (December 20,1975) at 10245 (Mr. Lloyd Francis, Parliamentary Secretary to President of the Treasury Board) |
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It is agreed that Parliament did not intend to change anything that would impact on the views expressed by the Court in Gruber. |
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| Statute Law (Superannuation) Amendment Act, S.C. 1974-75, c. 81 (December 20, 1975) |
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s. 2.1: The definition "salary" in subsection 2(1) of the said Act is repealed and the following substituted therefore. "salary" means (a) as applied to the Public Service, the basic pay received by the person in respect of whom the expression is being applied for the performance of the regular duties of a position or office exclusive of any amount received as allowances, special remuneration, payment for overtime o r other compensation or as a gratuity unless that amount is deemed to be or to have been included in that person's basic pay pursuant to any regulation made under paragraph 32(1)(b.2); and
(b) and as applied to the regular force or the Force, the pay or pay and allowances, as the case may be, applicable in the case of that person, as determined under the Canadian Forces Superannuation Act or the Royal Canadian Mounted Police Superannuation Act. |
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s.2.l: La définition de « traitement » au paragraphe 2(1) de ladite loi est aborgée et remplacée par qui suit:
(a) La rémunération de base versée pour l'accomplissement des fonctions normales d'un poste dans la Fonction publique, ainsi que les indemnités, notament les allocations, les rétributions spéciales ou la rémunération d'heures supplémentaires, ou les gratifications réputées en faire partie conformément aux règlements établis en vertu de l'alinéa 32(1)(b.2);
(b) la solde, ainsi que les allocations, payuables dans le cadre de la force régulière ou de la Loi sur la pension de retraite des Forces canadiennes ou de la Loi sur la pension de retraite de la Gendarmerie royale du Canada. |
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| Public Service Superannuation Act, R.S.C. 1985, c. P-36 (December 31, 1984) |
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s. 3(1): "salary" means (a) as applied to the Public Service, the basic pay received by the person in respect of whom the expression is being applied for the performance of the regular duties of a position or office exclusive of any amount received as allowances, special remuneration, payment for overtime or other compensation or as a gratuity unless that amount is deemed to be or to have been included in that person's basic pay pursuant to any regulation made under paragraph 42(1)(e), and
(b) as applied to the regular force or the Force, the pay or pay and allowances, as the case may be, applicable in the case of that person as determined under the Canadian Forces Superannuation Act or the Royal Canadian Mounted Police Superannuation Act. |
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s. 3(1): « traitement » a) La rémunération de base versée pour l'accomplissement des fonctions normales d'un poste dans la fonction publique, y compris les allocations, les rémunérations spéciales ou pour temps supplémentaire ou autres indemnités et les gratifications qui sont réputées en faire partie en vertu d'un règlement pris en application de l'alinéa 42(1)e);
b) la solde, ainsi que les allocations, payables dans le cadre de la force régulière ou de la Gendarmerie en vertu de la Loi sur la pension de retraite des Forces canadiennes ou de la Loi sur la pension de retraite de la Gendarmerie royale du Canada. |
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LEGISLATIVE EVOLUTION AND ELEMENTS OF THE HISTORY REFERRED TO BY THE PARTIES FOR "SALARY"
PART II Public Service Superannuation Act
| An Act to amend the Public Service Superannuation Act, S.C. 1953-54, c. 64 (June 26, 1954) |
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Part I. 2. The said Act is further amended by adding thereto the following Part: Part II. 39.(1) In this Part, (a) "basic benefit" with respect to a participant means (i) five thousand dollards, or (ii) the salary of the participant if it is a multiple of two hundred and fifty dollars or the nearest multiple of two hundred and fifty dollars above the salary of the participant if it is not a multiple of two hundred and fifty dollars, whichever is the lesser amount, subject to a reduction, to be made as of such time as the regulations prescribe, of one tenth of such lesser amount for every year in excess of sixty attained by the participant, except that in the case of a participant employed in the Public Service the basic benefit shall not be less that one-sixth of his salary if such one-sixth is a multiple of two hundred and fifty dollars or the nearest multiple of two hundred and fifty dollars above one-sixth of his salary if such one-sixth is not a multiple of two hundred and fifty dollars;
(i) "salary" means (i) in the case of a participant employed in the Public Service, the compensation received for the performance of the regular duties of his position or office in the Public Service, (ii) in the case of a participant who is a member of the regular forces, three thousand dollars per annum if his rank is lower than chief petty officer in the Royal Canadian Navy or warrant officer in the Canadian Army or Royal Canadian Air Force, and five thousand dollars per annum if his rank is chief petty officer or higher in the Royal Canadian Navy or warrant officer or higher in the Canadian Arm or Royal Canadian Air Force, (iii) in the case of an elective public service participant, his salary in the Public Service at the time he ceased to be employed in the Public Service, (iv) in the case of an elective regular forces participant, three thousand dollars per annum if his rank at the time he ceased to be a member of the regular forces was lower than chief petty officer in the Royal Canadian Navy or warrant officer in the Canadian Army or Royal Canadian Air Force, and five thousand dollars per annum if his rank at that time was chief petty officer or higher in the Royal Canadian Navy or warrant officer or higher in the Canadian Army or Royal Canadian Air Force; and
(j) other words and expressions have the same meaning as in Part I. |
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| Retroactive Remuneration Regulations, P.C. 1964-1417, S.O.R./64-371, (September 10th, 1964)
Repealed on March 23, 2000, S.O.R./2000-116. |
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2. In these Regulations, (a) "applicable statutes" means ... (ii) Canadian Forces Superannuation Act, ... (viii) Public Service Superannuation Act, ... (e) "remuneration" means compensation payable out of the Consolidated Revenue Fund and includes compensation upon which benefits are based for the purposes of the applicable statutes;
3. The Governor in Council or the Treasury Board may approve a retroactive upward revision in remuneration with an effective date of July 1, 1963 or later, which, subject to these Regulations, shall apply to (a) a person who (i) is an employee on the date of the approval notwithstanding that, during the retroactive period, his employment in a department agency in which he was an employee may have been terminated in order to allow him to accept employment in another department or agency or part thereof, or (ii) ceased to be an employee during the retroactive period because of (A) lay-off, (B) retirement, or (C) death, or (b) the estate of a person referred to in paragraph (a).
4. (1) Where a retroactive upward revision in remuneration is approved pursuant to section 3, remuneration shall, subject to these Regulations, be paid to or in respect of a person referred to in paragraph (a) of section 3 in an amount equal to that which would have been paid to or in respect of such person had the revision been approved on the effective date. (2) For the purposes of subsection (1), the calculation of the amount shall not include any period of employment terminated during a retroactive period for reasons other than those mentioned in section 3.
5. Subject to section 8, where a retroactive upward revision in remuneration approved pursuant to section 3 is paid to or in respect of a person, the person shall be deemed to have commenced receipt of the remuneration at the beginning of the period in respect of which it is paid.
8. Retroactive remuneration paid pursuant to these Regulations shall not be considered as remuneration (a) for the purpose of making adjustments in penalties for failing to meet attendance requirements; (b) for the purposes of an election made pursuant to clause (A), (AB), (B), or (F) or subparagraph (iii) of paragraph (b) of subsection (1) of section 5 of the Public Service Superannuation Act, subsection (7) of section 6 of the Public Service Superannuation Regulations, clause (K) of subparagraph (ii) of paragraph (b) of section 5 of the Canadian Forces Superannuation Act, or clause (I) of subparagraph (ii) of paragraph (b) of section 5 of the Royal Canadian Mounted Police Act; and (c) for any other purposes as may be prescribed by the Treasury Board.
This submission repeals the Retroactive Remuneration Regulations made by Order in Council P.C. 1964-1417 of September 10, 1964. Under subsection 11(2) of the Financial Administration Act, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management, authorize the rules governing retroactive payments for public servants under the Act, either in a general directive or as negotiated in group specific collective agreements. As well, members of the Royal Canadian Mounted Police and the Canadian Forces are entitled to retroactive payments in accordance with directives approved by Treasury Board. Consequently, the Retroactive Remuneration Regulations are obsolete and have no effect. |
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Department of Finance, Public Service Superannuation Act Administrative Circular 1964/13 (October 29, 1964) |
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| Department of Finance, Treasury Directive 62-121 (December 9, 1964)
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| Statute Law (Superannuation) Amendement Act, 1966, S.C. 1966, c. 44, s. 22 (July 11, 1966) |
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22.(1) Paragraph (a) of subsection (1) of section 39 of the said Act is repealed and the following substituted therefor: (i) "salary means (i) in the case of a participant employed in the Public Service, the compensation received for the performance of the regular duties of his position or office in the Public Service, expressed in terms of an annual rate, except that where a retroactive increase is authorized in the compensation of such participant, such increase shall be deemed to have commenced to have been received by him on such day as the regulations prescribe, and (ii) in the case of an elective participant, his salary in the Public Service at the time he ceased to be employed in the Public Service, expressed in terms of an annual rate," |
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| Public Service Superannuation Regulations, amended, S.O.R./66-342, s.3 (July 21, 1966)
s. 54A of the Public Service Superannuation Regulations replaced in 1973 by s. 23 of the Supplementary Death Benefits Regulations S.O.R./73-627 (now cited as C.R.C. 1360)
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54A. For the purposes of Part II of the Act, where a retroactive increase is authorized in the salary of a participant, such increase shall be deemed to have commenced to have been received by him on the first day of the month following the month in which: (a) the Governor in Council of the Treasury Board, as the case may be approves such increase; or (b) written approval of such increase was duly issued by the appropriate authority in any case where approval of the Governor in Council of the Treasury Board is not required. |
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| Miscellaneous Statute Law Amendment Act, 1977, S.C. 1977, c. 28 (June 29th, 1977)
Loi corrective de 1977, L.C., c. 28 (29 juin 1977)
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35.(4) All that portion of the definition "salary" in subsection 39(1) of the said Act preceding paragraph (b) thereof is repealed and the following substituted therefor:
"Salary" means on or after the 20th day of December 1975
(a) in the case of a participant employed in the Public Service, the salary as de3fined for purposes of Part I, expressed in terms of an annual rate, except that where a retroactive increase is authorized in the salary of such participant, such increase shall be deemed to have commenced to have been received by him on such day as the regulations prescribe, and |
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35.(4) La partie de la définition de « traitement » au paragraphe 39(1) de ladite loi, qui précède l'alinéa b) est abrogée et remplacée par ce qui suit :
« traitement » à compter du 20 décembre 1975, désigne
a) s'il s'agit d'un participant employé dans la Fonction publique, le traitement défini pour l'application de la Partie I, exprimé sous forme de taux annuel, sauf que lorsqu'une augmentation rétroactive est autorisée sur le traitement d'un tel participant, une telle augmentation est réputée avoir commencé à être perçue par lui le jour que prescrivent les règlements, et |
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| In the statute revisions of 1985, the Act was renumbered and section 39 became section 47. |
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| Public Sector Pension Investment Board, S.C. 1999, c. 34 (September 14, 1999) Loi sur l'Office d'investissement des régimes de pensions du secteur public, L.C. 1999, c.34
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s. 98 (3) The definition of "salary" in subsection 47(1) of the Act is amended by striking out the word "and" at the end of paragraph (a), by adding the word "and" at the end paragraph (b) and by adding the following after paragraph (b):
(c) in the case of a participant who is required to contribute to the Retirement Compensation Arrangement Account by section 8 or 9 of the Retirement Compensation Arrangements Regulations, No. 1, the salary referred to in subsections 8(3) or 9(1) of those Regulations. |
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s.98 (3) La définition de « traitement » , au paragraphe 47(1) de la même loi, est modifiée par adjonction, après l'alinéa b), ce qui suit:
(c) dans le cas d'un participant qui est astreint à contribuer au compte de régimes compensatoires par les articles 8 ou 9 du Règlement no 1 sur le régime compensatoire, le traitement visé aux paragraphes 8(3) ou 9(1) de ce règlement. |
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LEGISLATIVE EVOLUTION AND ELEMENTS OF THE HISTORY REFERRED TO BY THE PARTIES FOR "SALARY"
Part I Canadian Forces Superannuation Act
| Canadian Forces Superannuation Act, S.C. 1959, c. 21 (July 8, 1959) |
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s. 2(1)(h) "pay", as applied to the Canadian Forces, means pay at the rates prescribed by the regulations made under the National Defence Act for the rank held by the person in respect of whom the expression is being applied, together with the allowances prescribed by the regulations made under this Act for such rank, and, as applied to the Public Service or the Royal Canadian Mounted Police, means the salary or pay and allowances, as the case may be, applicable in the case of that person, as determined under the Public Service Superannuation Act or the Royal Canadian Mounted Police Superannuation Act; |
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| Statute Law (Superannuation) Amendement Act, 1966, S.C. 1966, c. 44, s. 22 (July 11, 1966)
Canadian Forces Superannuation Regulations, s. 35, P.C. 1967-2242 (S.O.R.-97-589) (November 30, 1967) now cited as (C.R.C., c. 396 s. 48)
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Canadian Forces Superannuation Act
s. 35(1) Subsection (1) of section 2 of the Canadian Forces Superannuation Act is amended by striking out the word "and" at the end of paragraph (k) thereof and by adding thereto, immediately after paragraph (k) thereof, the following paragraph: "(ka) "salary" as applied to a member of the Canadian Forces means his income for the year from his employment as a member of the Canadian Forces, computed in accordance with the Income Tax Act,plus any deductions for the year made in computing that income; and"
For the purposes of Part III of the Act, where a retroactive increase is authorized in the pay of a participant, such increase shall be deemed to have commenced to have been received by him on the first day of the month in which (a) the Governor in Council or the Treasury Board, as appropriate, approved such increase; or (b) written approval of such increase was duly issued by the appropriate authority in a case where approval of the Governor in Council or the Treasury Board is not required. |
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| Canadian Forces Superannuation Act, R.S.C. 1985, c. C-17 (December 31, 1984) |
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s. 2(1) "salary" as applied to a member of the Canadian Forces means his income for the year from his employment as a member of the Canadian Forces, computed in accordance with the Income Tax Act,plus any deductions for the year made in computing that income; |
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« solde » Relativement aux Forces canadiennes, la solde au taux prescrits par les règlements pris en vertu de la Loi sur la défense nationale pour le grade détenu par la personne que vise l'expression, ainsi que les allocations prescrites par les règlements pris selon la présente loi pour ce grade. L'expression « traitement » appliquée à la Gendaremerie royale du Canada, s'entend du traitement ou de la sold et des allocations selon le cas, applicable à cette personne ainsi qu le détermine la Loi sur la fonction publique ou la Loi sur la pension de retraite de la Gendarmerie royale du Canada.
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| Public Sector Pension Investment Board, S.C. 1999, c. 34 (September 14, 1999)
Loi sur l'Office d'investissement des régimes de pensions du secteur public, L.C. 1999, c.34 |
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115. (1) The definitions "contributor" and "salary" in subsection 2(1) of the Canadian Forces Superannuation Act are replaced by the following:
"salary" as applied to a member of the Canadian Forces means the pay received by the member from employment as a member of the Canadian Forces; |
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115. (1) Les définitions de « contributeur » et « traitement » , au paragraphe 2(1) de la Loi sur la pension de retraite des Forces canadiennes, sont respectivement remplacées par ce qui suit:
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| « traitement » La solde d'un membre des Forces canadiennes pour l'année provenant de son emploi à ce titre. |
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LEGISLATIVE EVOLUTION AND ELEMENTS OF THE HISTORY REFERRED TO BY THE PARTIES FOR "SALARY"
Part II Canadian Forces Superannuation Act
| Statute Law (Superannuation) Amendement Act, 1966, S.C. 1966, c. 44, s. 22 (July 11, 1966)
Canadian Forces Superannuation Regulations, s. 35, P.C. 1967-2242 (S.O.R.-97-589) (November 30, 1967) now cited as (C.R.C., c. 396 s. 48)
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Canadian Forces Superannuation Act [...] s. 53 The said Act is further amended by adding thereto the following Part:
PART III SUPPLEMENTARY DEATH BENEFITS
44. (1) (a) "basic benefit" with respect to a participant means the salary of the participant if it is a multiple of two hundred and fifty dollars or the nearest multiple of two hundred and fifty dollars above the salary of the participant if it is not a multiple of two hundred and fifty dollars, subject to a reduction, to be made as of such time as the regulations prescribe, of one-tenth of that amount for every years of age in excess of sixty attained by the participant, except that in the case of an elective participant who, upon ceasing to be a member of the regular forces or upon ceasing to be employed in the Public Service, was entitled under Part I of under the Defence Services Pension Continuation Act to an annuity or pension, the basic benefit shall not be less than five hundred dollars;
(f) "salary" means (i) in the case of a participant who is a member of the regular forces, the greater of
(A) the pay of that participant, expressed in terms of an annual rate, or (B) three thousand dollars per annum if his rank is lower than chief petty officer in the Royal Canadian Navy or warrant officer in the Canadian Army or Royal Canadian Air Force, or five thousand dollars per annum if rank is chief petty officer or higher in the Royal Canadian Navy or warrant officer in the Canadian Army or Royal Canadian Air Force, and
(ii) in the case of an elective participant, the greater of
(A) the pay that the participant at the time he ceased to be a member of the regular forces, expressed in terms of an annual rate, or (B) three thousand dollars per annum if his rank at the time he ceased to be a member of the regular forces was lower than chief petty officer in the Royal Canadian Navy or warrant officer in the Canadian Army or Royal Canadian Air Force, or five thousand dollars per annum if his rank at that time was chief petty officer or higher in the Royal Canadian Navy or warrant officer or higher in the Canadian Army or Royal Canadian Air Force,
except that where a retroactive increase is authorized in the pay of that participant, such increase shall be deemed to have commenced to have been received by him on such day as the regulations prescribe;
For the purposes of Part III of the Act, where a retroactive increase is authorized in the pay of a participant, such increase shall be deemed to have commenced to have been received by him on the first day of the month in which (a) the Governor in Council or the Treasury Board, as appropriate, approved such increase; or (b) written approval of such increase was duly issued by the appropriate authority in a case where approval of the Governor in Council or the Treasury Board is not required. |
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| Canadian Forces Superannuation Act, R.S.C. 1970, c. C-9 (December 31, 1969) |
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31.(1) "salary" means (a) in the case of a participant who is a member of the regular forces, the greater of (i) the pay of that participant, expressed in terms of an annual rate, and (ii) three thousand dollars per annum if his rank is lower than warrant, or five thousand dollars per annum if rank is warrant officer or higher, and (b) in the case of an elective participant, the greater of (i) the pay that the participant at the time he ceased to be a member of the regular forces, expressed in terms of an annual rate, and (ii) three thousand dollars per annum if his rank at the time he ceased to be a member of the regular forces was lower than chief petty officer in the Royal Canadian Navy, warrant officer in the Canadian Army or Royal Canadian Air Force, or five thousand dollars per annum if his rank at that time was chief petty officer or higher in the Royal Canadian Navy or warrant officer or higher in the Royal Canadian Navy, warrant officer or higher in the Canadian Army or Royal Canadian Air Force or warrant officer or higher in the Canadian Forces,
except that where a retroactive increase is authorized in the pay of that participant, such increase shall be deemed to have commenced to have been received by him on such day as the regulations prescribe;
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| In the statute revisions of 1985, the statute was re-numbered and section 31 became section 60.
Canadian Forces Superannuation Act, R.S.C. 1985, c. C-17 (December 31, 1984) |
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s. 60 "salary" means (a) in the case of a participant who is a member of the regular force or a member of the reserve force described in paragraph (b) of the definition "participant", the greater of
(i) the pay of that participant, expressed in terms of an annual rate, and
(ii) three thousand dollars per annum if his rank is lower than warrant officer, or five thousand dollars per annum if his rank is warrant officer or higher, and
(b) in the case of an elective participant, the greater of
(i) the pay of that participant at the time he ceased to be a member of the regular force, expressed in terms of an annual rate, and
(ii) three thousand dollars per annum if his rank at the time he ceased to be a member of the regular force was lower than chief petty officer in the Royal Canadian Navy, warrant officer in the Canadian Army or Royal Canadian Air Force or warrant officer in the Canadian Forces, or five thousand dollars per annum if his rank at that time was chief petty officer or higher in the Royal Canadian Navy, warrant officer or higher in the Canadian Army or Royal Canadian Air Force or warrant officer or higher in the Canadian Forces,
except that where a retroactive increase is authorized in the pay of that participant, the increase shall be deemed to have commenced to have been received by him on such day as the regulations prescribe. |
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« traitement » a) Dans le cas d'un participant qui est un membre de la force régulière ou un membre de la force de réserve visé à l'alinéa b) de la définition de « participant » , le plus élevé des montants suivants :
(i) la solde de ce participant, exprimée sous forme de taux annuel,
(ii) trois mille dollars par an, s'il a un grade inférieur à celui de sous-officier breveté, ou cinq mille dollars par an s'il a un grade de sous-officier breveté ou un grade supérieur;
b) dans le cas d'un participant par choix, le plus grand des deux montants suivants:
(i) la solde du participant à la date où il a cessé d'être membre de la force régulière, exprimée sous forme de taux annuel,
(ii) trois mille dollars par an s'il avait, à la date où il a cessé d'être membre de la force régulière, un grade inférieur à celui de premier maître de la Marine royale du Canada, ou de sous-officier breveté de l'Armée du Canada ou de l'Aviation royale du Canada, ou de sous-officier breveté des Forces canadiennes, ou cinq mille dollars s'il avait à cette date un grade de premier maître ou un grade supérieur dans la Marine royale du Canada, un grade de sous-officier breveté ou un grade supérieur dans l'Armée du Canada ou dans l'Aviation royale du Canada ou un grade de sous-officier breveté ou un grade supérieur dans les Forces canadiennes,
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1978-02
STYLE OF CAUSE: ANDREA LILLIAN REID
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING: Ottawa, Toronto and Vancouver
by way of teleconference
REASONS FOR JUDGMENT AND JUDGMENT : GAUTHIER J.
DATED: February 1, 2005
APPEARANCES:
Robert Margolis FOR PLAINTIFF
John Kleefeld
Dale Yurka FOR DEFENDANT
Caroline Engmann
SOLICITORS OF RECORD:
Giaschi & Margolis FOR PLAINTIFF
Vancouver, B.C.
John H. Sims, Q.C. FOR DEFENDANT
Deputy Attorney General of Canada
Toronto, Ontario
[1]The election form is included in the defendant's motion record but the parties agreed that it did not create any contractual relationship between them nor does it have any impact on the issue raised in this motion.
[2]Pursuant to section 52 of the Public Service Staff Relation Act, R.S.C., 1985, c. P-35, Mr. Reid's salary remained the same until completion of the negotiations of the new collective agreement.
[3]Because the SDBP is not a subject open to negotiation, it is not the subject of any specific provision in this collective agreement.
[4]Part III does not contain a definition of "salary". It simply refers at section 68 to the salary described in sections 6 and 39 of the PSSA.
[5]There was also an insurance program available for public servants under the Civil Services Insurance Act, S.C. c.15.
[6]See note 10, infra.
[7]In the case of Mr. Reid, the basic benefit was defined as the nearest multiple of one thousand dollars above twice his salary.
[8]Sullivan, Ruth & Elmer A. Driedger, Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002) 502-508.
[9]The defendant produced a directive dated September 2003 (page 159 of the motion record) apparently governing the treatment of retroactive remuneration of employees not covered by a collective agreement, but it does not refer specifically to this subject.
[10]The date prescribed by regulations for the taking into account of retroactive salary increases payable under the PSSA is the first day of the month following the month in which the retroactive remuneration increase is authorized (Supplementary Death Benefits Regulations, C.R.C. c. 1360, s. 23, and prior to 1973, s. 54A of the Public Service Superannuation Regulations S.O.R./66-342). Under the CFSA, the prescribed date is the first day of the month in which the retroactive remuneration increase is authorized (Canadian Forces Superannuation Act Regulations, C.R.C. c. 396. s. 48).